Woods v. Cooke

Barrows, J.

The writ sets forth a recovery of a judgment by the plaintiff, at the March term, 1869, against one Neal, as principal, and against Neal’s goods, effects, and, credits in the hands and possession of this respondent, as Neal’s trustee, “ charged conditionally, namely, if the plaintiff pay the trustee $2000, and interest from April 19, 1865, within sixty days after the final judgment, then the trustee is to deliver to the officer one-half of the cigars and the interest in the vessel.”

Then follow averments of a tender by the plaintiff of “shid $2000, and interest within said sixty days, to wit, on the 17th day of May, a. d. 1869that execution issued on this judgment, in due form of law, Marcli 27, 1869, and was placed in the hands of an officer duly authorized to serve it; and that on the 29th day of May, 1869, the officer demanded of the respondent the goods, effects, and credits of said Neal, in his hands and possession, and lie refused to deliver them; and thereupon the officer returned the execution in no part satisfied, and that execution upon that judgment still remains to be done. The respondent demurred generally at the first term, and excepts to the overruling of his demurrer, which was duly joined.

He presents, as the grounds of his demurrer, the want of any averment of a demand by an officer on the trustee within thirty days from the rendition of judgment, the want of any averment that the tender was made or the property demanded while the right of redemption existed, and the failure to make it appear, upon a comparison of dates, that the tender was made within sixty days after the rendition of judgment.

Reversing the order in which they have just been stated, we remark,

1. The averment is distinct, that the tender was made “ within said sixty days,” and there is nothing, in the dates given, absolutely inconsistent with this averment. Though the judgment was rendered at the term begun and -holdcn on the first Tuesday of March, 1869, it does not follow nor seem probable that it was rendered on that day, and the date of the execution, March 27, 1869, is within sixty days next preceding the 17th of May, when it is alleged the tender was made. Inasmuch as the dates given do not contradict the express averment admitted by the demurrer, that the tender was made within said sixty days, we deem this ground untenable.

2. There is no direct averment that the tender was made while the right of redemption of the mortgaged chattels existed, but the writ sets forth in totidem verbis the order of the court, charging the trustee^ upon condition that plaintiff paid the requisite sum within sixty days after final judgment, and avers a tender within said sixty days. To sustain this cause of demurrer it would be necessary to presume that the judge made an order in direct contravention of the statute which provides (c. 86, § 50) that, upon a certain state of facts being disclosed by the trustee, “ the court . . . shall order that on payment or tender of such money by the plaintiff to said trustee, within such time as the court orders, and while the right of redemption exists, he shall deliver over the property,” etc.

We are not to presume, upon a demurrer, that the court made the order in this case, in disregard of the requirements of the statute. An averment of a tender, within the time limited by the court in the order, is equivalent to an averment of a tender while the equity of redemption existed.

If the fact was otherwise, the defendant should have excepted to the ruling hy which he was charged, and must now plead and establish the existence of the error in the order. But he might as well object to the writ for want of an averment that the trustee disclosed property, not exempt by law from attachment, mortgaged to him and in his possession, upon which the principal defendant had an existing right of redemption, for this, under the same § 50, is all prerequisite to the passage of the conditional order for delivery. The passage of the order necessarily implies it all.

8. If a demand for the property to be made upon the respondent, by an officer, within thirty days after final judgment, is essential, it is fatal to the plaintiff’s case, for no such demand is averred. The respondent relies upon § 73, c. 86, and the first clause of that section supports his position strongly.

But the provision which dissolves the attachment by the original process, if the goods, effects, or credits are not duly demanded of the trustee, within thirty days next after final judgment, is qualified by the final clause as follows: “ but when the debt due from the trustee to the principal defendant is payable at a future day, or specific property is in his hands which he is bound to deliver at a future day, the attachment shall continue until thirty days next after such debt is payable in money, or the property aforesaid is demanded of the trustee.”

Applying this now to cases arising under § 50, and construing the whole together so as to give due effect, if possible, to all the provisions, it is plain that the mortgagee, or pledgee, is not bound to deliver the property until the amount of his debt is tendered to him; that the judge may fix such reasonable time, during the life of the equity of redemption, as he thinks proper, within which the plaintiff may tender, and the attachment will hold good for thirty days after the tender is made, and the trustee becomes bound to deliver. When the process of foreign attachment is served, the law lays its hand upon the principal debtor’s interest and he is thereby precluded from making an effectual tender, and his right to. redeem is in the hands of the court, to be made available to his creditor under the provisions of § 50. It will always be in the power of the mortgagee to save ail his own rights, by seasonably taking the proper steps to foreclose his mortgage. We think a demand by the officer having the execution, within the thirty days next after the tender by the attaching creditor, is necessary to fix the liability of the trustee, who might otherwise well suppose that the debt had been discharged by the principal defendant, and that without such demand scire-faeias could not be maintained.

Such a demand is averred here, and a refusal by the respondent to deliver thereupon. Exceptions overruled.

Mepleader awarded upon payment of costs.

Appleton, C. J.; Cutting, Kent, Dickerson, and Tapley, JJ., concurred.