Ellinwood v. Holt

60 N.H. 57

Opinion

Clark, J.

The plaintiff’s title under the Marcy mortgage is valid against the defendant’s attachment. The objection, that the plaintiff, by attaching the property, waived his rights under the mortgage, is not open to the defendant. Whatever may be- the effect of an attachment of mortgaged personal property by the holder of the mortgage in ordinary cases (Haynes v. Sanborn, 45 N. H. 429, and Evans v. Warren, 122 Mass. 303), the defendant, having elected to treat the plaintiff’s attempted attachment as a nullity and forcibly taken possession and sold the property, cannot afterwards insist on the attachment as valid to defeat the mortgage. Big. Est. (3d ed.) 562; Butler v. Hildreth, 5 Met. 49; Scholey v. Rew, 23 Wall. 331.

Judgment for the plaintiff on the report.

Bingham, J., did not sit: the others concurred.