Conversion. Mortgage, Of personal property. Attachment. Evidence, Presumptions and burden of proof.
If the owner of a mortgage, in which the property mortgaged is described as certain specifically described personal property in a store "and all other property whatever name or description, now located at" the store, forecloses the mortgage by taking possession of all the personal property therein, he gains no title to property placed in the store by the mortgagor after the date of the mortgage and cannot maintain an action of tort for conversion against a deputy sheriff who enters the store, and, on a writ against the person who was the proprietor of the store at the time of the foreclosure of the mortgage, attaches and takes away only property which was not specifically described in the mortgage and was not in the store at the time the mortgage was given.
One who claims title to certain goods in a store by reason of a foreclosure of a mortgage cannot maintain an action of tort for the conversion of the goods against a deputy sheriff who after the foreclosure attached them on a writ against persons who were proprietors of the store at the time of the foreclosure if at the trial of the action the jury, on evidence warranting them in so finding, find that the goods were the property "of the several defendants or any of them mentioned and described in the writ under which they were attached and removed" by the deputy sheriff.
In an action of tort against a deputy sheriff for the conversion of certain goods which, while the plaintiff had them in his possession by reason of the foreclosure of a mortgage of personal property in a store, the defendant attached under a writ against the proprietors of the store, the burden is upon the plaintiff of proving that at the time of the attachment he had, besides possession of the goods, a complete property in them, either general or special.
A deputy sheriff is justified, on a writ against six persons as the proprietors of a store, in attaching goods in the possession of one who claims title to them by reason of a foreclosure of a mortgage of the property in the store given by three of such six persons, if at the time of the attachment the goods were the property of the defendants in the writ "or three of them or any of them."
BRALEY, J.
The plaintiffs' title by purchase to the personal property for the alleged conversion of which they seek damages is derived from a duly recorded mortgage whose validity the defendant does not question. It is familiar law, however, that even if possession for the purposes of foreclosure had been taken, the title to after acquired property would not pass in the absence of a provision in the mortgage to that effect, which is not shown by the record. Blanchard v. Cooke, 144 Mass. 207, 222, 223. It appears that nearly a year had elapsed between the date of the mortgage and the commencement of proceedings to foreclose, during which the business of the bakery had been carried on by the mortgagors, and the jury were warranted upon conflicting evidence in finding as they did in answer to the first question, that "the property described in the plaintiffs' declaration" had not been mentioned in or covered by the mortgage. It accordingly is plain that the first, second and third requests could not have been given.
But if the answer is conclusive on this issue, the plaintiffs further contend, that having taken possession before the defendant, a deputy sheriff, attached the goods on mesne process in an action against the mortgagors, they had a possessory title sufficient to enable them to recover damages. Shaw v. Kaler, 106 Mass. 448, 449. It was discretionary with the presiding judge whether he would submit to the jury the second question, namely, "Was the property described in the plaintiffs' declaration the property of the several defendants or any of them mentioned and described in the writ under which they were attached and removed by . . . the defendant in this action?" Hart v. Brierley, 189 Mass. 598, 604. The plaintiffs, on whom the burden of proof rested, could not recover unless at the time the goods were attached and removed by the defendant they had therein a complete property, either general or special, as well as actual possession or the right to immediate possession. Bacon v. George, 206 Mass. 566, 570. And the affirmative answer to this question having been fully justified by the evidence, the fourth and fifth requests became immaterial, while the seventh was properly refused. Shaw v. Kaler, 106 Mass. 448.
The property in question having been in the bake shop, the jury were also rightly instructed that if when seized they found it belonged to the mortgagors, the defendant had the right of removal for which he incurred no liability to the plaintiffs. Platt v. Brown, 16 Pick. 553, 556.
Exceptions overruled.