Howe v. Bartlett

Chapman, J.

If after the plaintiff took possession of the property mortgaged to him it was agreed that he should sell it and account to the mortgagor for the proceeds of the sale after paying his debt, because the mortgagor did not wish to redeem, his title did not thereby become absolute. He was either a mortgagee with power to sell, or, at most, his title was changed to that of a pledgee. Rowley v. Rice, 10 Met. 7. Same v. Same, 11 Met. 333. The property was equally subject to attachrpent under the statute in either case; and each attaching creditor was entitled to notice of the plaintiff’s claim. Wheeler v. Bacon, 4 Gray, 550. This action cannot be main tained, because notice was not given to the second and third attaching creditors.

The plaintiff complains that the amount of property attached by the officer was excessive. But there is no force in this objection. It was necessary for the creditor to attach all the mortgaged property, in order to avail himself of the mortgagor’s equity of redemption. The plaintiff objects that it does not appear that the attaching creditors had any valid claims against the mortgagor. But this objection is not open to him. By making the demand prescribed by the statute, he would compel the attaching creditor to pay his debt or abandon the attachment ; and the statute provides that if the action is not maintained, the creditor, having paid the mortgagee’s debt, shall have a lien on the property for his indemnity. This provision protects attachments on demands that do not prove to be valid. The ruling of the court was correct in directing a verdict for the defendant. “ Exceptions overruled