Wells v. Connable

138 Mass. 513, 1885 Mass. LEXIS 243

Opinion

Morton, C. J.

We are of opinion that the second count of .the plaintiff’s declaration is a count in tort in the nature of trover. It alleges that the defendant “ has converted said property to his own use.” This allegation cannot be rejected as surplusage; it gives character to the count.

If the defendant had demurred to the count, he would have been met by the answer that it was a good count in trover. The count means the same as if it had been, in form, that the defendant has converted the property to his own use by a sale without notice to the plaintiff. The defendant has the right thus to interpret it, and to come to the trial relying upon the settled law that a mortgagor cannot maintain trover against his mortgagee. Landon v. Emmons, 97 Mass. 37. Exceptions sustained.