Evans v. Warren
Massachusetts Supreme Judicial Court
Replevin of certain articles of personal property. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts in substance as follows : In July, 1875, one Nancy Walsh brought an action against the plaintiff on a promissory note which was then due and owing by him to her, and attached the goods and chattels replevied, belonging to the plaintiff, which were the same goods and chattels described…
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Replevin of certain articles of personal property. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts in substance as follows : In July, 1875, one Nancy Walsh brought an action against the plaintiff on a promissory note which was then due and owing by him to her, and attached the goods and chattels replevied, belonging to the plaintiff, which were the same goods and chattels described in a mortgage given by him to her to secure the payment of the note. The attachment was dissolved by the plaintiff…
1Opinion of the CourtLord, J.
A party holding personal property by virtue of a mortgage or pledge may waive his claim under such mortgage or pledge, and attach the property in a suit to recover the debt for which the mortgage or pledge was given. Buck v. Ingersoll, 11 Met. 226, 232. Such attachment is, in itself, a waiver of the claim under the mortgage. The liens respectively created by mortgage and by attachment on the same property are essentially different, and cannot coexist. They affect very differently, also, the rights of third persons. A stranger may attach personal property subject to the incumbrance of a prior…
2Cited by28 opinions
- Kearney Milling & Elevator Co. v. Union Pacific Railway Co.Supreme Court of Iowa · 1896
- First National Bank v. FlynnSupreme Court of Minnesota · 1933
- Kilkus v. ShakmanMassachusetts Supreme Judicial Court · 1926
- Barchard v. KohnIllinois Supreme Court · 1895
- Cox v. HarrisSupreme Court of Arkansas · 1897
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