Phillips v. Fields , 83 Me. 348 ( 1891 )

Haskell, J.

Two questions are submitted. Is notice from a mortgagee to the attaching creditor, instead of the attaching officer, a compliance with § 45 of R. S., and is such notice, stating in substance, it is impossible for me to know the amount of my mortgage claim, "but, if I am correct, it is somewhere about $2300,” sufficient.

The mortgagee had received from the attaching officer notice of the attachment, and was required by the statute as a prerequisite to his suit, within ten days thereafter, to "deliver to the officer a true account of the amount due on his claim.”

An officer, by attaching chattels and taking them into his custody, becomes personally chargeable with their value. If they appear to be mortgaged, upon notice to the mortgagee of his attachment, he is entitled to receive from the mortgagee a true account of the amount due on his claim, in order that he may save himself by releasing the attachment, or paying the mortgage, or demanding indemnity from the attaching creditor if he insists upon disputing the mortgage. The liability is a personal one, and the officer is entitled to receive the notice. A notice to tlie attaching creditors, wlio may be pecuniarily irresponsible, might serve him no good purpose. They might suppress the notice and allow the ten days to elapse, and leave the officer to take care of himself; for, if a notice to the attaching creditor is a compliance with § 45, it would seem that the notice required by § 44 might also be given to the creditor, instead of the officer ; and, when notice had been given to the creditor under § 45, after the lapse of forty-eight hours, the officer could not invoke the protection of § 44. So the irresistible conclusion is, that the officer, who has sureties for the faithful discharge of duty, is entitled to personally receive the notices specified in both § § 44 and 45, of Tt. S.

Moreover, an attaching officer is entitled to a definite statement of the amount clue on a mortgage of the chattels attached. That is, the statement of a definite sum that is claimed lobe due. In Nichols v. Perry, 58 Maine, 29, upon which the plaintiff rests his case, the notice to the officer stated : "There is actually due me . . exceeding nine hundred dollars, as at the time said mortgage was given.” The court considered this notice as a statement of nine hundred dollars due, for which the property could be redeemed. The notice relied upon here, says : "It is impossible for me to know, but if I am correct, it is somewhere about $2300.” This gave no definite information. From it no tender of less than $2300, could safely have been made, and yet, there might not have been so much due.

It is said that a remedy is given by suit for false statement in such case. What would such remedy be ivorth in a case like this ? The officer had a right to redeem the mortgage, and he had a right to know definitely how much the mortgagee claimed to be due, then, a false claim would make a case for damages. It may be said that in some cases it would be impracticable to state the exact amount duo. There is no element of that soil in this case. The mortgagee says : "It is impossible for me to know” the amount due ; but he does not take the trouble to give any statement whatever as an excuse for his inability to know. Had the mortgage been to secure a liability that was contingent and that could not be correctly stated in a gross sum, he might have stated an amount that he believed would be just indemnity. This matter is by no means without difficulty; but attaching creditors must be considered, as well as mortgagees ; and to guard against dishonest and fraudulent mortgages, the mortgagees should be required to state the amount due, or excuse the statement by such full, particular, detailed account as it is in their power to give, that the officer may have all the information upon which to act, that is practicable for the mortgagee to have.

Judgment for defendant.

Peters, C. J., Libbey, Emery, Foster and Whitetiouse, JJ., concurred.