Delano v. Smith , 142 Mass. 490 ( 1886 )

C. Allen, J.

The petitioner alleges in her petition that no payment has been made, at any time, of the debt secured by the mortgage; and this is also found as a fact in the report. There is no room, therefore, for a presumption of fact to the contrary. Howland v. Shurtleff, 2 Met. 26, 28. Cheever v. Perley, 11 Allen, 584. At the time of the deeds to Mr. Delano, and of the partition, it was not known who were the owners of two undivided sixth parts of the land, and he sought to obtain a good title thereto in two ways, in view of this uncertainty. In the first place, he took deeds from the four heirs of Keziah Burt who were known to be living, and these deeds were effectual to convey said interests, provided these four grantors had succeeded by inheritance to the interests of their two absent brothers. If Mr. Delano’s title should turn out to be valid under these deeds, then, by the agreement made when the notes were given, those four grantors were and still are entitled to the benefit of the notes and the mortgage security. In the second place, Mr. Delano procured an assignment of the two sixths to be made to him by the Superior Court, on his petition for partition. The petitioner now contends that this assignment was invalid; but, if so, she has no standing here, because, independently of the assignment, she does not show that she has a title to the two sixths which she seeks to have cleared of the incumbrance of the mortgage. If, on the other hand, Mr. Delano’s title was valid under the assignment, then this furnished a good consideration for his promise to pay the price, and, by the agreement, the notes and mortgage would stand for the benefit of the parties who should ultimately show themselves entitled thereto. In any aspect of the case, these two sixths have never been paid for, except by the notes and mortgage. The parties who owned them have never alleged the invalidity of the assignment, or sought to recover possession of two sixths of the land, and when they appear or are ascertained, they may not wish to do so. The petitioner cannot now be heard to say that the assignment was invalid, because she claims under it. The notes by their terms were not payable till something should be shown in respect to the title. That has not yet been done, and the condition of the mortgage has not yet been broken.

Petition dismissed.