Hulsman v. Whitman

109 Mass. 411

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1872
• Status: Published

Opinion

Wells, J.

The bill sets forth fraud and deception on the part of the defendants, by means of which the attaching of the lien of the plaintiff was delayed, and an intervening lien by mortgage placed upon the premises; whereby the security of his lien is destroyed or impaired. A mortgagee, who by such means obtains an unfair advantage, cannot in equity retain it. The plaintiff may have relief in equity to secure to him the priority of lien to which he is justly entitled.

It is also alleged in the bill that the mortgage is without consideration, and thus is fraudulent and void as against creditors, If that is true in fact, the mortgage could not be successfully set np against a purchaser under proceedings to enforce the plaintiff’s lien. But no such proceedings can be commenced until default of payment under the contract. The greater part of the monej to become due will not be payable until all the buildings shall have been fully completed. In the mean time the plaintiff’s security is seriqusly impaired; and he is exposed to the chance that the mortgage may pass into the hands of some bond fide assignee for its full value. Against this risk he is entitled to be protected.

Demurrer overruled.