Fender v. Blackmer

138 N.E. 813, 244 Mass. 447, 1923 Mass. LEXIS 979

Opinion

Rugg, C.J.

This is an action of tort against a deputy sheriff for attaching merchandise on which the plaintiff claims to hold a mortgage. The mortgage was dated September 30, 1920, to secure a note for $300, and was duly recorded on October 4, 1920. The plaintiff took possession of the merchandise for breach of condition of the mortgage, but before foreclosure the defendant made the attachment. The mortgagee thereupon gave to the defendant a notice of the tenor following, omitting the direction and signature: “You are hereby notified that I hold a mortgage on the stock and fixtures now in a certain store numbered 39 Lebanon Street, Maplewood, District of Malden,' dated the 30th day of September, 1920, and recorded with Malden City Records October 4, 1920, for three hundred ($300.00) dollars. I have already taken possession of these goods and have been to expense therefor. I hereby demand of you the amount of said mortgage and interest to date and the expenses of said foreclosure proceedings.” It is manifest that this demand was not a sufficient compliance with G. L. c. 223, § 75, which requires “a just and true account of the debt or demand.” The case at bar is governed by Loanes v. Gast, 216 Mass. 197, where the authorities are collected and reviewed. Ashcroft v. Simmons, 151 Mass. 497.

Judgment for defendant on the verdict.