Brackett v. Bullard
Massachusetts Supreme Judicial Court
This was an action of trespass, to recover the value of personal property, which was seized and sold by the defendant, a deputy sheriff in the county of Norfolk, on an execution in favor of David O’Brien.
Read the full summary
This was an action of trespass, to recover the value of personal property, which was seized and sold by the defendant, a deputy sheriff in the county of Norfolk, on an execution in favor of David O’Brien. It appeared in evidence, on a trial in the court of common pleas, before Merrick, J. that said property was mortgaged to the plaintiffs, by a deed dated February 2d 1843, and recorded on the 10th of March following ; that the mortgage was made without the request or knowledge of the plaintiffs ; that, at the request of the mortgagor, a person employed y dim took a list of the mortgagees,…
1Opinion of the CourtShaw, C. J.
On the trial in the court of common pleas, two exceptions were taken by the counsel for the defendant, which were sustained by the court. First, that an action of trespass would not lie, because the mortgagees had not taken possession of the property pursuant to St. 1843, c. 72, $ 1. This statute merely directs that the mortgagee shall take possession of the property, and hold it sixty days, before the mortgagor’s right to it shall be forfeited. But it does not *310affect the rights of third persons. By the general rules of law, a mortgage of goods is a transfer, defeasible indeed, on a condition…
2Cases cited2 opinions
- Ditto v. GeogheganCourt of Appeals of Kentucky · 1858
- Edgar v. DodgeMassachusetts Supreme Judicial Court · 1808