¶1The ruling of the court below was erroneous. If the conveyance of the property by Gouch to the plaintiffs amounted to a mortgage, the seizure and sale of ii *128by the sheriff, on execution against Gouch, was illegal and void; and the plaintiffs, as mortgagees, have a right to maintain their action of replevin therefor. Lyon v. Coburn, 1 Cush. 278. If it was not a mortgage, but only a bill of sale of the property, it was an open question between the parties, whether the plaintiffs had acquired a good title to the property under it. From the trial of this question they were precluded by the ruling of the court. There must, therefore, be a new trial. Exceptions sustained.
64 Mass. 126
Lamb v. Johnson
Massachusetts Supreme Judicial Court
Decided October 15, 1852
Massachusetts Supreme Judicial Court · decided 1852-10-15
<p>Personal property mortgaged cannot be taken on execution against the mort* gagor; and replevin will lie by the mortgagee against a purchaser of the property at the sale on the execution.</p>
Decided 1852-10-15