Pierce v. Henries

Wells, J.

— The question presented in this case is, whether a mortgagee, whose mortgage has been recorded, but who has never had the actual possession of the goods mortgaged before the service of the trustee process upon him, can be considered in possession so as to be liable to the trustee process.

The statute, under which the trustee is claimed to be held, c. 119, <§> 58, provides, that “ when any person, summoned as a trustee, shall in his disclosure state, that he had, at the time the process was served on him, in his possession, property not exempt by law from attachment, but that the same was mortgaged, pledged or delivered to him by the principal defendant,” &c. The statute requires that the mortgagee shall have possession of the mortgaged property in order to render him chargeable as trustee. It appears to have contemplated an actual possession, so that the trustee should have the control of the property, and to have made this the ground of his liability. If the trustee were held upon a constructive possession merely, he might suffer loss, when he ought not to be subjected to it. Central Bank v. Prentice & trustee, 18 Pick. 396.

As Manson, the trustee, never had possession of the goods before the plaintiff’s writ was served on him, he must be discharged. The exceptions are sustained

and the trustee discharged.

Shepley, C. J., and Rice and Appleton, J. J., concurred.