Lamb v. Johnson

64 Mass. 126

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1852
• Status: Published

Opinion

By the Court.

The ruling of the court below was erroneous. If the conveyance of the property by Gouch to the plaintiffs amounted to a mortgage, the seizure and sale of ii by the sheriff, on execution against Gouch, was illegal and void; and the plaintiffs, as mortgagees, have a right to maintain their action of replevin therefor. Lyon v. Coburn, 1 Cush. 278. If it was not a mortgage, but only a bill of sale of the property, it was an open question between the parties, whether the plaintiffs had acquired a good title to the property under it. From the trial of this question they were precluded by the ruling of the court. There must, therefore, be a new trial. Exceptions sustained.