Hall v. White

106 Mass. 599

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1871
• Status: Published

Opinion

Ames, J.

“ Beplevin cannot be maintained, in this Commonwealth, against a person who has no possession or control of the goods to be replevied; replevied goods cannot be restored and returned to a person from whom they were never taken, and such serson cannot rightfully be made a defendant, sole or joint, in an action of replevin.” Richardson v. Reed, 4 Gray, 441. The plaintiff therefore clearly cannot maintain her suit against the defendant White. He had ceased to have any possession or control of the property for more than two months before the' date of the plaintiff’s writ. If there has been anything irregular or tortious in his proceedings as messenger, the plaintiff must seek her remedy in some other "form of action.

With regard to the other defendants, her claim seems to be also without any legal foundation. The assignees of the insolvent mortgagees do not derive their title to the property from the messenger in insolvency. They hold entirely by virtue of the assignment, the effect of which was to vest in them, not only the debt due from the plaintiff to the insolvents, but also all the rights and remedies of the insolvents as mortgagees of the property in dispute. At the date of that assignment, the mortgage debt had matured and was unpaid; and the original mortgagees had an incontrovertible right to take immediate possession for breach of condition. This right passed by the assignment in insolvency to the defendants Beals and Tobey. The case discloses nothing whatever like a waiver or loss of this right, and it seems to follow that the property was rightfully in their possession, subject to redemption by the plaintiff by payment of the mortgage debt at any time before actual foreclosure in due form of law. Judgment for the defendants.