Brown v. Statter

92 N.E. 78, 206 Mass. 119, 1910 Mass. LEXIS 766

• Court: Massachusetts Supreme Judicial Court
• Decided: May 19, 1910
• Status: Published

Opinion

Loring, J.

The only defense set up is that the wrong done the plaintiff was a conversion, and for that her remedy is by an action at law.

The master has not found in terms when the title to the furniture was to pass to the plaintiff. He has found with respect to most of the articles here in question, that they were not delivered to the plaintiff when the list of the furniture was delivered on July 10. It would seem from this that the title was not to pass until the morning of July 10, that is to say, until after these articles had been surreptitiously removed by the defendant.

But that is not material. It was as much a fraud to remove the articles surreptitiously after the title had passed provided it was the intention of the defendant to do so when she delivered the bill of sale and took back the mortgage. And we find that to be the fact.

The defendant originally held ten negotiable notes signed by the plaintiff and secured by mortgage for the full amount which would have been due had all the articles exhibited been delivered, and in that mortgage is a covenant on the plaintiff’s part that she is the lawful owner of the articles never delivered to her by the defendant.

It appears from the decree that at the date of the filing of the bill eight of these notes had not become due.

The plaintiff would have had no defense to these notes, or to an action for breach of her covenant in'the mortgage, if the notes had come into the hands of a Iona fide purchaser for value.

Taking these notes and this mortgage from the plaintiff under these circumstances was a fraud on the defendant’s part against which the plaintiff is entitled to relief in equity.

The plaintiff was entitled to have the mortgage reformed as well as the notes surrendered. In that respect the decree entered did not give the plaintiff all she was entitled to. But she has not appealed from it. Braman v. Foss, 204 Mass. 404.

The entry must be

Decree affirmed.