Drysdale v. Wax
Massachusetts Supreme Judicial Court
Contract, in which chattels were attached as the property of the defendants, and the mortgagee of the chattels was summoned as trustee under Pub. Sts. c. 161, § 79, which provides that personal property of a debtor subject to a mortgage and in the possession of the mortgagor may be attached as if unencumbered and the mortgagee or his assigns summoned as trustee.
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Contract, in which chattels were attached as the property of the defendants, and the mortgagee of the chattels was summoned as trustee under Pub. Sts. c. 161, § 79, which provides that personal property of a debtor subject to a mortgage and in the possession of the mortgagor may be attached as if unencumbered and the mortgagee or his assigns summoned as trustee. The answer of the alleged trustee disclosed him to be in actual possession as mortgagee of the chattels for the purpose of foreclosure. In the Superior Court the plaintiff filed a motion for a trial by jury and the framing of issues…
1Opinion of the CourtHolmes, C. J.
The proceeding under Pub. Sts. c. 161, § 79, is given only when the mortgagor is in possession of the personal property mortgaged. It is not given when the mortgagee is in possession, even if the mortgage be fraudulent as against creditors. The jury trial provided for by § 81 is a trial of the validity of the mortgage only, not a trial of the fact that the mortgagor is in possession, which is the condition precedent of the right to the jury trial. Porter v. Warren, 119 Mass. 535,537. Other methods are given for reaching goods in the hands of the mortgagee. Pub. Sts. c. 183, § 66; c. 161, §…
2Cases cited1 opinion
- Porter v. WarrenMassachusetts Supreme Judicial Court · 1876
3Cited by3 opinions
- Jenness v. ShrievesMassachusetts Supreme Judicial Court · 1905
- Shapira v. WalkerMassachusetts Supreme Judicial Court · 1917
- Haskell v. CarrollMassachusetts Supreme Judicial Court · 1919