Whitney v. Guild , 77 Mass. 496 ( 1860 )

Shaw, C. J.

Up to 1785 any lawful entry by the mortgagee after condition broken, and the lapse of three years, worked a foreclosure. Such entry must be actual, peaceable, and so far notorious as to afford a reasonable presumption that the owner must know it, and such actual possession must be retained by the mortgagee, or some tenant or other person in his behalf, three years. A lease to the tenant, at an actual or nominal rent, would be acknowledgment on his part of the mortgagee’s possession. If the first entry be after condition broken, the presumption of law is that he enters for condition broken.

By the St. of 1785, c. 22, § 2, it was provided that the mortgagor might redeem, unless the mortgagee had entered by process of law, or in presence of two witnesses, and continued in peaceable possession three years. But it did not require the witnesses to testify, a fortiori not to certify, and their certificate would not be evidence unless in the form of a deposition in perpetúan. An actual entry, in presence of two witnesses, followed by open and peaceable possession three years, was all that was required. Boyd v. Shaw, 14 Maine, 58. Scott v. McFarland, 13 Mass. 309. This act was in force in 1827, when it is alleged that Guild entered.

The plaintiff having joined in the mortgage after her one seventh of the estate became her own estate in fee after the death of her mother, the mortgage was binding on her own title. And being also after her husband had purchased in the shares of the other heirs, the effect was to bind the plaintiff, although a feme covert, both as to her own estate in fee, and also as to her right of remainder in the shares of the other heirs. The law of Massachusetts having provided that a feme covert may join with her husband in conveying her estate in fee, in tho case such deed is valid against her as if a feme sole. If such conveyance be conditional, that is, a mortgage, it gives to the mortgagee and his assigns all the rights which the law attaches to her conveyance as if of a feme sole. Being an enabling act to give effect to her conveyance, it gives effect to it with its legal incidents and consequences. She therefore would be barred by a lawful foreclosure, notwithstanding her coverture at the time of condition broken and at the time of foreclosure. The same principle applies to her alienation of her inchoate right of dower.

K therefore the defendants prove the facts of which evidence was offered, it will be competent to show a foreclosure by the lawful entry of the assignee of the mortgagee for condition broken. Verdict set aside.

The case was afterwards heard before Merrick, J., and by him reported upon all the evidence to the whole court, who at October term 1863 found as matter of fact that the mortgage had been foreclosed, and entered a

Decree for the defendants.