Moriarty v. Lovejoy

40 Mass. 321

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1839
• Status: Published

Opinion

Dewey J.

afterward drew up the opinion of the Court. By the provisions of the Revised Stat. c. 90, § 78, the property for the taking of which damages are demanded in this action, was legally subject to attachment, although under a mortgage to the plaintiff. ' This right of attachment is however upon the condition that the party making the same shall, within twenty-four hours after demand of payment of the sum due on the mortgage, pay and discharge the same.

Preliminary to the right of vacating the attachment by the mortgagee for the non-payment of the debt secured by the mortgage, is the duty or the part of the mortgagee, of stating a just and true account of the debt due, and demanding payment of the same. Upon recurring to the evidence offered to show a statement of the mortgagee of the amount due, and a demand of payment of the same, it is found to be defective in several particulars.

1. It does not particularly describe the property mortgaged, but merely alleges an indebtedness of one John M. Moriarty and the holding of certain property as security, without nam ing it specifically, but referring to the town records, and stating the date of the mortgage.

2. It does not allege that the property mortgaged was the same then attached and in the hands of the officer, but describes it as property in the possession of John M. Moriarty.

3. It does not demand the payment of any money due on the mortgage, either expressly or impliedly.

For these reasons, the statement of the amount due and the demand made, were, in the opinion of the Court, entirely defective and insufficient under the statute, to defeat the attachment under which the defendant then held the property. No right of action, therefore, had accrued to the plaintiff, at the time of instituting her suit, and she cannot maintain her action.

The verdict, which was for the plaintiff, is to be set aside, and a new trial had, unless the plaintiff consents to become Eonsuit.