Tucker v. McDonald

105 Mass. 423

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Ames, J.

We must consider this case as substantially disposed of by the decision in Barry v. Abbott, 100 Mass. 396. It was there held that the provisions of St. 1851, e. 206, for reaching and applying to the satisfaction of a debt the equitable assets of a debtor, might be resorted to by a creditor who had not exhausted his remedies at common law, or even reduced his claim to a judgment; and that a creditor might institute a suit under the statute for himself alone. It was also held that this express statute remedy was not taken away or limited by the subsequent legislative grant to the court of general equity powers. Silloway v. Columbian Insurance Co. 8 Gray, 199. Sanger v. Bancroft, 12 Gray, 365.

It is familiar law that the holder of collateral security for a debt is not confined to that security, but may attach any other property of the debtor, unless there has been some agreement to the contrary. We see no reason for considering the remedy which the creditor is pursuing in this case as subject to any different rule. We cannot know whether the mortgage that he holds is adequate security for the debt or not. It is at most merely collateral to the debt, and is of course no bar to any othei legal remedy. The remedy which he is pursuing is in the nature of an attachment by an equitable trustee process, and we cannot see any reason why he may not resort to it. 1 Story Eq. § 547 and cases there cited. Taylor v. Cheever, 6 Gray, 146.

Decree for the plaintiff.