Evans v. Warren

122 Mass. 303, 1877 Mass. LEXIS 124

• Court: Massachusetts Supreme Judicial Court
• Decided: March 7, 1877
• Status: Published

Opinion

Lord, J.

A party holding personal property by virtue of a mortgage or pledge may waive his claim under such mortgage or pledge, and attach the property in a suit to recover the debt for which the mortgage or pledge was given. Buck v. Ingersoll, 11 Met. 226, 232. Such attachment is, in itself, a waiver of the claim under the mortgage. The liens respectively created by mortgage and by attachment on the same property are essentially different, and cannot coexist. They affect very differently, also, the rights of third persons. A stranger may attach personal property subject to the incumbrance of a prior lien by attachment, with no responsibility for such prior lien; if the lien is by mortgage, he must pay the amount secured by such mortgage, before his attachment is effectual. We have no need to discuss the question whether the same rule shall apply to an attachment of the equity of redemption of personal property, to secure the payment of the mortgage debt, as applies to the equity of redemption of real property; for, in this Commonwealth, the equity of redemption of personal property is not attachable The only mode by which a mortgagor’s interest in mortgaged personal property can be reached by attachment is that pointed out in the Gen. Sts. c. 123, §§ 62-71.

It was argued by the defendants’ counsel that the attachment was a mere nullity, of no effect whatever. The mortgagee certainly cannot treat, as a nullity, an act of himself, to relieve from the effect of which the mortgagor is compelled to give a bond, with sureties, either to pay the whole mortgage debt, or, at least, the whole value of the mortgaged property. It is not necessary even to allude to the extraordinary condition of things which would exist, if the creditor should be permitted to claim at different times, according to varying circumstances, as either mortgagee or attaching creditor, or both, at his election.

Judgment for the plaintiff.