Bennett v. Bailey

22 N.E. 916, 150 Mass. 257, 1889 Mass. LEXIS 68

Opinion

•Knowlton, J.

It was settled in Blanchard v. Cooke, 144 Mass. 207, after a careful review and a full consideration of the authorities, that possession of after-acquired personal property, rightfully taken and maintained by a mortgagee, under a mortgage purporting to cover it, gives him a title good not only against the mortgagor, but even against an assignee in insolvency or an attaching creditor. That principle is applicable to the present case. The mortgage under which the defendant took possession covered property afterwards acquired in the plaintiff’s business, and all the goods for which the plaintiff was permitted to recover under his third count were so acquired, and were lawfully taken into possession by the defendant under the mortgage, and were sold in proceedings to foreclose the mortgage. There was no evidence upon which recovery could be had under the third count, and the rulings as to this part of the case were erroneous.

We discover no error in the refusals and instructions upon the other questions raised. Acceptance by the plaintiff of the proceeds of the sale under the mortgage was an affirmance of the sale, but it was not necessarily a waiver of a claim founded on fraud in conducting the sale. Montgomery v. Pickering, 116 Mass. 227. If there was such fraud, and no waiver, the plaintiff might well maintain his action on the first count in the amendment to his declaration. Fenton v. Torrey, 133 Mass. 138.

The evidence as to the disposition of the property by the defendant, after he took possession of it on August 24, was competent, so far as it bore upon the question whether he acted fairly and in good faith in conducting the foreclosure.

Exceptions sustained.