Wing v. Bishop

75 Mass. 223

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Bigelow, J.

The trial of this cause seems to have proceeded throughout upon a misapprehension. As between the plaintiff and the defendant Bishop, the latter bad the older and better title under his mortgage, and it is difficult to see how the plaintiff can maintain an action of trespass against Bishop for taking that which was his own. Nor can it make any difference that the defendant took it into his possession under an attachment for a debt other than that secured by his mortgage. The right of the plaintiff to recover in this action must depend on his title to the property at the time of the alleged trespass, and not upon the fact that the defendant asserted a right to it which was not tenable. The case necessarily turned on a comparison of titles, and the defendant’s was clearly paramount to that of the plaintiff.

But the plaintiff fails to show any cause of action, on the ground that the property was taken by Bishop under an attachment, irrespective of his title to it by virtue of an older mortgage. The attachment was legal and valid as against the plaintiff until he made a demand of the officer for the amount due under' his mortgage, and the time allowed for the payment of this amount had expired. "Without proof of such demand and á failure to pay the sum demanded, the defendants were not tortfeasors. No such demand was proved at the trial. Rev. Sts. c. 90, §§ 78, 79. St. 1844, c. 148. Exceptions sustained.