Folsom v. Clemence

111 Mass. 273

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1873
• Status: Published

Opinion

Wells, J.

All questions of fraud at common law were settled, at the trial, in favor of the mortgagee; and there is no exception upon that part of the case.

The mortgages were recorded prior to the attachments, and prior to the assignment in bankruptcy. They were valid between the parties from the time they were executed. The provisions of the Gen. Sts. c. 151, § 1, therefore, cannot be relied on to defeat the mortgage.

The provisions of the bankrupt act, § 35, are applicable only to transactions which took place with the debtor within the limited periods named before the filing of the petition by or against him. They are independent of local statutes requiring registration. As both mortgages were made more than six months before the proceedings in bankruptcy, the several rulings requested in regard to their validity under the bankrupt law were rightly refused.

The judge rightly ruled also that the arrangement or understanding in regard to withholding the mortgages from record unless the mortgagors should have trouble, did not render them void, but was “ a matter entitled to consideration by the jury in passing upon the question ” of fraud at the common law.

All the other exceptions relate to the question oí the sufficiency or the demand upon the officer by the mortgagee.

It is contended that the demand was for a larger sum than was due on the notes. That is a question of fact, not found at the trial, and not disclosed or to be ascertained upon the bill of exceptions without a computation, which it is not the duty or the province of the court to make. The demand states the sum due on both mortgages to be $3723.30. The original amount and date of each is stated separately. The amount and dates of the several indorsements on the first note are given with precision. It concludes : “ And I now demand payment of said notes to me secured by said mortgages.”

The purpose of the written demand required of the mortgagee is to give the officer or attaching creditor notice of the existence of the claim, and such information as to its nature and amount as will enable him to act understandingly in reference to it. If it is sufficiently explicit and accurate to answer these purposes, it is not rendered invalid by mere informalities. If made in good faith, it will not be defeated by inaccuracies or other defects which do not tend to mislead, or by which the parties in the particular case could not be damnified. Rowley v. Rice, 10 Met. 7. Witham v. Butterfield, 6 Cush. 217. Brewster v. Bailey, 10 Gray, 37.

The demand is for payment of the notes. If the sum named as due was too large, the means of correction were supplied in the written demand itself. The same means also enabled the officer or creditor to ascertain how much was due separately on each mortgage, if that was of any importance to them.

The date of the second mortgage was distinctly stated; and the evidence tended to show that to have been the time of its delivery, which is the true date. The indorsement of the date upon the back of the mortgage was a sufficient dating of the instrument.

The officer could not well have been in doubt that the claim was made upon two notes.

It was not necessary for the mortgagee, in his -written demand, to designate the articles included in his mortgages so as to distinguish them from others of a like character with which they migbj be commingled. It was sufficient for him to be ready to point them out, or cause it to be done, when called upon by the officer to do so, for the purpose of separation. Morrill v. Keyes, 14 Allen, 222.

The demand gave to the officer and creditors all the informa* tian necessary for their guidance. Exceptions overruled.