Sisson v. Tate , 109 Mass. 230 ( 1872 )

Colt, J.

The defendant’s position that the right to redeem bhe mortgage under which she claimed was foreclosed under the certificate of Tate, the mortgagor, giving peaceable possession of the premises to the mortgagee for the purpose of foreclosure, and for breach of the conditions thereof, cannot be sustained. The difficulty is, that at the time of giving the certificate Tate had conveyed his estate in the premises to those under whom the plaintiffs claim. The statute requires the certificate to be signed by “ the mortgagor or the person claiming under him,” according as the title shall be in one or the other at the time.. Upon the case stated, Tate was in possession under his grantee only as tenant at will or by sufferance, claiming no title. In a writ of entry to foreclose, so long as he set up no estate in the premises and did not withhold possession from the mortgagee, he could not be treated as tenant of the freehold, and could only be made defendant by being joined with the tenant of the freehold under the statute, as mortgagor. Gen. Sts. c. 140, §§ 2, 8. Campbell v. Bemis, 16 Gray, 485. Bennett v. Conant, 10 Cush. 163, 165. The certificate was ineffectual to foreclose the mortgage; and the case must be referred to a master to state the account.

Ordered accordingly.