Sherman v. Davis

Massachusetts Supreme Judicial Court

Sherman v. Davis

137 Mass. 132, 1884 Mass. LEXIS 200

CourtMassachusetts Supreme Judicial Court

DecidedApril 1, 1884

StatusPublished

Cited by4 cases

This text of 137 Mass. 132 (Sherman v. Davis) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherman v. Davis, 137 Mass. 132, 1884 Mass. LEXIS 200 (Mass. 1884).

Pincite

Opinion

Field, J.

At common law, mortgaged personal property could not be taken on an execution against the mortgagor, because the legal title was not in him; and it is only by statute that it can now be attached, or taken on execution, and the statutes do not now permit it to be taken on execution, unless it has first been attached in the manner provided by the statutes. Badlam v. Tucker, 1 Pick. 389. Brackett v. Bullard, 12 Met. 308. Lyon v. Coburn, 1 Cush. 278. Lamb v. Johnson, 10 Cush. 126. Prout v. Root, 116 Mass. 410. Porter v. Warren, 119 Mass. 535. But, if the mortgage was fraudulent and void as to creditors, a creditor could levy an execution upon the property, as if the mortgage had no existence. The mortgage might be good, as between the parties, yet voidable by creditors of the mortgagor. Shurtleff v. Willard, 19 Pick. 202. Pratt v. Wheeler, 6 Gray, 520. Angier v. Ash, 6 Foster, 99. Russell v. Dyer, 33 N. H. 186. Brown v. Snell, 46 Maine, 490.

Exceptions sustained.

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Field, J.

At common law, mortgaged personal property could not be taken on an execution against the mortgagor, because the legal title was not in him; and it is only by statute that it can now be attached, or taken on execution, and the statutes do not now permit it to be taken on execution, unless it has first been attached in the manner provided by the statutes. Badlam v. Tucker, 1 Pick. 389. Brackett v. Bullard, 12 Met. 308. Lyon v. Coburn, 1 Cush. 278. Lamb v. Johnson, 10 Cush. 126. Prout v. Root, 116 Mass. 410. Porter v. Warren, 119 Mass. 535. But, if the mortgage was fraudulent and void as to creditors, a creditor could levy an execution upon the property, as if the mortgage had no existence. The mortgage might be good, as between the parties, yet voidable by creditors of the mortgagor. Shurtleff v. Willard, 19 Pick. 202. Pratt v. Wheeler, 6 Gray, 520. Angier v. Ash, 6 Foster, 99. Russell v. Dyer, 33 N. H. 186. Brown v. Snell, 46 Maine, 490.

Exceptions sustained.

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Bluebook (online)

137 Mass. 132, 1884 Mass. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-davis-mass-1884.

Opinion

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