Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1875-12-10
Ilailp 3lcnuetct Nournal.

An important decision has just been rendered
by Judge Fox in the United States District Court
at Portland, on the petition of Marshall Whithed
and A. F. Emery, against the Assignees of Harr-
son Baker bankrupt The question was argued
by VIM. z. Whitehouse, Esq, for the petitioners,
and psbury ( Titcomb, assignees for themselves.
On Monday, Dec. G. the following opinion was
delivered by the court
MA'SE w. 'iaoisd. DisIRIGI, srr {lS BA>Anurror.
December Term, 1875.
Ao1s5a' a4a1ed anal 4. r. E4ry, Ptahoacs,
L. I. fiHsJarg and Samuel 1ttcom5, .issigaees.
Fox, J.-Baker was adjudged bankrupt in this
| Court, upon his petition flied, Sept 20, 1879,
and the respondents were duly appointed his AS
| ,ignees. The bankrupt was the keeper Of the
Augusta House, under lease to him from Cush-
man < ais, for three years from October 10, 1874
at rent OF $4,000 per year, payable in monthly
| installments, together with the taxes and insur
| ance. The performance of the covenants Of this
| lease were secured by chattcl mortgage to the
lessors from Baker, OF all the household furniture
| iu the house. together with all property of a sim
liar description which he may hereafter add there
to. so that the said property should at all times be
| suitable and proper for carrying on said Augusta
! House," the mortgage also provided that said
Baker should indemnify and save harmless the
| lessons from ali liabilities they were already or
may here after incur, by reason of advances made
| by them or az sgners endorsers of any notes
| which they should make or endorse for the accom-
| mediation of said Baker" This lease and mort
| gage were duly recorded, and the bankrupt went
| into possession of the house and remained there
| until the filing of his petition in bankruptcy. lie
! added TO the furniture. his purchases amounting
| to about 81 00o, portion OF which attached
on wit in favor of the Gas Company, July 81,
! $50 This attachment was discharged, and on
! August 9Th, Baker executed on the back of the
original mortgage an agreement reciting "that 10
consideration OF the depreciation in value by use,
past and future. of the property within described,
! hereby agree that the within mortgage, with this
| endorsement thereon. shall hold and cover anv and
! all additions that have been nav be made TO
the same; also including two billiard and one
| pool table plt into the Augusta House by me. to-
gether with all the fixtures thereto belonging
| lhls instrument Was recorded in the city records
| on the same day.
Under the laws Of this State, an attachment of
| chattels, subject to a mortgage, may be made on
Et.Saf process. {. Is, Secs II, -, IS and /, pro-
vide that such moltGaGcd property may be at
| tachcd, held and sold, a if it was unncumbered,
If the attaching creditor first tenders pays the
| full amount unpaid on the demand so secured.-
| The mortgage shall not bring his action against
| the attaching officer until he has given him IS
| hours written notice of his claim and the true
amount thereof; and the officer OF creditor mav
rendering the amount due thereon, OF restore the
property. al the creditor redeems such property
and it Is subsequent, sold by the ofscer, he shall
from the proceeds hrst pay to the creditor the
amount, with interest, paid by him to redeem, and
| apply the balance TO the debt on which il was
| attached.
The petitioners, being creditors Of the bankrupt,
on the 18th of August sued out their wits against
hlm and caused The mortgaged furniture to be at
tacbed thereon lv the Sheriff of kcnnobec coun-
ty, and on the day due notice of the attach
| rent was : Ycn by the officer 10 the mort tcagees,
to which, on the 9th of the same month, they
made written reply, setting forth in detail the sew
oral sums claimed by them to be secured bV said
mortgage, amounting in the aggregate to 5000
! y On that day; snl they further claimed to mold
The same security for the accluing lcn. during
the continuance OF the lease.
! On the 9th Of August, the mortgages served
| upon Baker a notice Of foreclosure under the
statute, for breach Of condition Of the mortgage,
and on the 2Sh the attaching creditors paid 10 the
mortgages the amount claimed by them to be
secured by the mortga.e-i. e. -, ,90312, and also
gave 10 them their obligation, binding themselves
10 assume and keep in the future all the other
.tipustions and covenants of said lessee, pro
| yided said les,ors shall promptly, and without de
lay, enforce compliance with ell the terms and
conditions Of the lease not already performed by
| us and avail themselves Of all needed legal meas
ures allow us TO do go, TO cxpel said lessee for
! non-paymcnt Of rent eIeaiter becoming due, and
give US the privileges ami benefit CT -ad lease,
according to the terms thereof
On the sixth Cf September, process of fol Cibie
| entry and deialner, 10 recover flom Baker the
posse ,sion Of the premises, commenced against
Aim by the lcSsors, rcturnable before the Munich
pal ouit Of Augusta, september 18Th.
IN appraisal was duly made Of the attached
property, and the appraisers having certified that
1t could net be kept without great expense and
| deteliora.ing in value the officer, in accordance
with law, advertised to sell the same at public
auction on the "a day of September, but was PIE
Il ~, Il
ourt on the 22d Of that month, in the bankruptcy
proceedings; and the property was therefore held
by the Sncritf under his attachment until the re-
| spondents were appointed As.isnees, when the
zane was turned over 10 them by the sheriff The
process of forClble entry and dctainer was also
stayed by sn injnrc;on from this Court the
2ith of September, until the farther order Of ,he
Court
The As,ienees having obtained The possession
of the mortgaged property, VI hitLcd proposed to
purchase the same, to- aether with any interest ac-
quired by the Assisnees in and by virtue Of the
lease for the sum OF ten thousand dollars. They
petitiCncd tins ourt for leave to accept the offer
| of Whitfield. Notice Of the petition was given to
the mortgages and all othcla interested and no
one appearing 10 object, the Court authorized the
sale to be made under section j,@i, stat. at large,
which hae been Gone.
Upon careful revision Of the accounts ii er-
peared thai the bankrupt bad PAID to Of The
lessons, Miliken, by boald, S7S6.61, which should
have been allowed in part discharge of the rent ;
| and that there had been oyer-paymcn Of rent
| by the attaching creditors to that amount on the
9th day Of August. \ ~cttlemeni was according
| " made between Tic lessons and the attaching
! creditors, the sum OF ri9l9ll being claimed a.
due on The 21th of August, and a fmthoI sum Of
| S2l3,33 for additional rent Of the premises from
| August 18th 10 september 20th, the day Of the
filing the petition in bankruptcy; these two
amounts, in the aggregate S5,l32.l4, weic re-
tained by the lessos, and the balance of the
amount received by them was repaid to the attach
ing creditors. The petitioners in their present pc
| tition now ask that the Assgnees may be ordered
to refund to them, from the proceeds of sale the
81, l32.ii and interest, they having renquished
20 the Assignees and d.chaig gcd all claim, under
! the endorsement on the mortgage of August 9TH,
to any proceeds Of sale Of the furniture acquired
| by Baker after the 18th Of October
The respondents, in behalf of the creditors, deny
the validity of the original mortgage of Oct. 18th,
and claim that it was rendered null and void by
the proceedings of August 5th; and they called at
| the hearing the bankrupt a witness, who testi-
fed that soon after the attachment made by the
Gas Co., Cushman, one of the mortgages, called
upon him (he being then unwell and confined to
! his room), with the mortgage and endorsement
/ thereon, as it now appears, and requested him to
, execute the same at the same time assigning as q
therefor, that there several parties in
AuUuSta who were 1isnosed In mt him IN trouhle