Tyler Parsons vs. Benjamin Merrill, Administrator, 5 Met. 356

Shaw, C. J. The decision of this case appears to us to depend upon a few plain provisions of law. It is agreed that a demand was made by the plaintiff, on the defendant, for a delivery of the goods, which was refused, before the action was commenced. The fact that the goods were under attachment d’d not pre ■ vent the owner from making a conveyance of them by sale or mortgage. Fettyplace v. Dutch, 13 Pick. 388. Arnold v. Brown, 24 Pick. 89. Grant v. Lyman, 4 Met. 470. In this case the consideration of the conveyance is not contested.

Then by the death of the debtor, before the goods were taken or seized on execution, and administration taken within one year, the attachment was dissolved. Rev. Sts. c. 90, § 105. The mortgage, having been duly made and recorded, was good without actual delivery of the goods ; Bullock v. Williams, 16 Pick. 33 ; and would have constituted a valid hypothecation, had they remained in the possession of the mortgagor. When, therefore, the administrator paid the expenses to the attaching officer, and took the goods into his own possession, for the purpose of administration, as he might by Rev.

Sts. c. 90, § 106, he still held them subject to the valid mortgage made by his intestate to the plaintiff. He had a right to hold the goods, subject to such mortgage, and if they had been of greater value, than the amount for which they were mortgaged, it would have been for the benefit of the estate that he should do so. It was a right to redeem, for the benefit of the general creditors, and to take the goods from the attaching officer, for that purpose, on payment of the fees ; but he could not defeat or set aside the mortgage.

No doubt the general object of the statute was to defeat that particular attachment, and so bring the attached property into the general fund, as assets, and thus secure a more equitable distribution ; and this will be the result, when there is no conveyance or mortgage, subsequent to the attachment, or when the attached property exceeds in value the amount for which it is mortgaged.

This precise case was not probably in the contem plation of the legislature ; but we think it comes within the stat ute provisions which, in their general operation, are beneficial It was said that at all events the action could not be main tained, without first tendering to the defendant the amount which he had paid to the attaching officer for his fees. If indeed it turns out, that the goods are worth no more than toey were mortgaged for, so that the estate, represented by the defendant, derives no benefit from his payment, it would be very equitable for the plaintiff, to reimburse him that expense.

But when it is relied on, as a condition precedent to maintaining the action, it is a very different question, and it becomes necessary to examine the legal grounds of such claim. The administrator, in paying such expenses, is presumed to act for the benefit of the estate, either because he is ignorant of the mortgage, or under a belief that the right of redeeming was of value to the estate, or intending to contest the validity of the mortgage.

He was under no obligation to do it, and the fact of doing it shows, in the absence of other, proof, that it was done for the estate ; and here is no proof that it was done at the request or for the benefit of the mortgagee. In the absence of any legal obligation, or of any request, express or implied, from the plaintiff to the defendant, to pay those expenses for his account, we can perceive no ground, on which their reimbursement can be held to be a condi tion precedent to maintaining the action. Defendant defaulted, and judgment for nominal damages.