Collamore v. Collamore , 158 Mass. 74 ( 1893 )

Field, C. J.

It is conceded by the counsel of the tenant that the devise of John Hoffman to his daughter, “ Maria Eliza Hoffman, and her heirs born of her body forever,” created an estate tail, and that on her death the estate descended to her oldest son, Gilman Collamore, of whom the demandant, is the oldest son. Corbin v. Healy, 20 Pick. 514. Maria Eliza died on November 15, 1845. It is contended, among other things, by the counsel of the tenant, that Gilman Collamore barred the entail by his deed of December 12,1846, to John A. Andrew, trustee. Gilman died on July 26, 1884. On the facts stated in the exceptions, it must be taken that Gilman, at the date of his deed, was actually seised of the land as tenant in tail, within the meaning of Rev. Sts. c. 59, § 3, now Pub. Sts. c. 120, § 15. Green v. Chelsea, 24 Pick. 71, 78. Coombs v. Anderson, 138 Mass. 376. The mortgage of Maria Eliza and her husband to the Massachusetts Hospital Life Insurance Company is immaterial. It does not appear that the mortgagee ever took actual possession of the land, and the mortgage was discharged on October 16, 1865. A mortgagor of land in possession, and his heirs, are actually seised of the land as against everybody but the mortgagee. Willington v. Gale, 7 Mass. 138. Dolliver v. St. Joseph Ins. Co. 128 Mass. 315. The deed of Gilman Collamore was sufficient in form to bar the entail. Coombs v. Anderson, ubi supra. Exceptions overruled.