Cases Argued and Determined in the Supreme Judicial Court of Massachusetts (200), Volume 200General Books LLC, 2009 - 582 pages This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1909. Excerpt: ... purported to cover after-acquired property and the defendants took possession of everything immediately after their purchase, on June 10, 1904, more than three months before the petition in bankruptcy was filed against the mortgagor. These facts gave them a good title to the after-acquired portion of the stock in trade, if there was any such portion. Wasserman v. McDonnell, 190 Mass. 326. Chase v. Denny, 130 Mass. 566. Blanchard v. Cooke, 144 Mass. 207, 225, 227. Bliss v. Crosier, 159 Mass. 498. The plaintiff has no equity to require the defendants to resort first for the payment of their mortgage to the furniture and fixtures, which are not available to the plaintiff. It does not appear what the value of the furniture and fixtures is; and the plaintiff could have no equitable rights until the mortgage debt due to the defendants was fully satisfied. Quackenbush v. O'ffare, 129 N. Y. 485. Taylor's appeal, 81 Penn. St 460. And this claim of the plaintiff rests upon the assumption that while the furniture and fixtures belong to the defendants, the stock in trade belongs in equity to the plaintiff. We do not think that in the absence of controlling equities the defendants could be required to resort first to their own property to obtain payment of an indebtedness which is secured also by property of the plaintiff. Wilcox v. Fairhaven Bank, 7 Allen, 270. It is the general doctrine that the equitable rule of marshalling assets for the protection of a junior creditor by compelling a senior creditor to resort first to a fund or security which the junior creditor cannot reach, will be confined to cases where two or more persons are creditors of the same debtor, and have successive liens upon the same property, while the creditor prior in right has also other secur... |
