Sherman v. Davis

137 Mass. 132, 1884 Mass. LEXIS 200

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.