Cram v. Bailey

76 Mass. 87

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1857
• Status: Published

Opinion

By the Court.

1. The plaintiff’s right in her property was not devested or changed, as against strangers, by reason of her having mortgaged it for her daughter’s debt. As against all persons but the mortgagee and those claiming under him, she had the right of property and of possession, and can maintain this action.

2. The measure of damages to the plaintiff was the value of the property at the time when it was taken. The fact that a third person had a claim upon it did not diminish the plaintiff’s claim for damages. Ullman v. Barnard, 7 Gray, 558.

3. The settlement made by the attaching creditors with the mortgagee, without the plaintiff’s knowledge or consent, did not affect the plaintiff’s claim for damages. It did not appear but that the daughter would pay the whole of her debt.

Exceptions overruled.