Day v. Boulle , 234 Mass. 25 ( 1919 )

Crosby, J.

This is a petition filed in the Land Court to register the title to a parcel of land situated in the towns of Rowe and Heath, in the county of Franklin. A decision in favor of the petitioner has been entered in that court. The respondent, who contends that she is the owner of the land, excepted to the refusal of the associate judge to make seven rulings requested by her.

The following'findings of fact are recited in the decision: On May 11, 1910, Helen E. Sprague acquired title to the locus by deed which was duly recorded on May 13, 1910; afterwards she married David Duquette, and on May 22, 1912, as Helen E. Sprague Duquette conveyed the land to Thomas Boulle, (husband of the respondent,) reserving a life estate therein; on the same day, Boulle conveyed the land to David Duquette subject to the life estate of Helen E. Duquette; both of these deeds were duly recorded on May 23, 1912.

On April 24, 1913, a deputy sheriff for the county of Franklin, by virtue of an execution issued on a- judgment recovered by William A. Davenport against Helen E. Duquette, conveyed all her right, title and interest in the land which she had on January 23, 1913 — the date when it was attached on mesne process — to Thomas Boulle; the deed was duly recorded on May 2, 1913.

On April 25, 1913, in an action brought by George A. Sprague against Helen E. Duquette, a special attachment was made of the land in question, the officer’s return setting forth that the attachment was of all the right, title and interest which the defendant had therein and that the record title stood in the name of David Duquette; an execution issued on the judgment in favor of the plaintiff, and thereunder, all the interest of the defendant in the land was sold and conveyed to Sprague on September 17, 1913, the deed being duly recorded on October 10, 1913.

On September 18, 1915, Thomas Boulle “by order of court released to said Sprague all the right, title and interest which he acquired by virtue of the first sheriff’s deed above referred to. ”

On September 17, 1914, Sprague brought a writ of entry against David Duquette to obtain possession of the land, and recovered judgment thereunder on September 7, 1915; an execution was issued on the judgment and the plaintiff was put in possession of the premises and on January 12, 1916, Sprague conveyed the land to the petitioner.

The respondent claims that the land was conveyed to her by David Duquette by mortgage deed dated May 6, 1913, and recorded May 21, 1913; and that on May 6, 1915, for breach of condition thereof, she entered and took possession for the purpose of foreclosing the mortgage, and is now the owner of the land in fee simple. The associate judge of the Land Court found that, before the mortgage was given to the respondent, there were two prior mortgages on the locus, which were discharged April 18, 1913; that the discharges thereof were duly recorded May 21, 1913; and that the only outstanding mortgage on the last named date was that held by the respondent. It appears from the record that the attachments in the two actions against Helen E. Duquette above referred to were both made before May 21 (the date when the respondent’s mortgage, was recorded), namely, on January 23, 1913, and on April 25,1913, respectively. The judge found that on the record it is shown that the plaintiffs in the actions above referred to recovered judgments against the defendant, that executions issued, levies were made thereunder, and the defendant’s interest in the land was sold; that the attachments continued in force until the levies were made; that all the requisites of the statutes were complied with and that the record title is in the petitioner. We cannot revise the findings of fact made in the Land Court. Under the sheriff’s deed first above referred to, the purchaser acquired title to the life estate held and owned by Helen E. Duquette; under the second sheriff’s deed he acquired not only her right to redeem from the first sheriff’s deed but also her interest in the land standing in the name of David Duquette, and seasonably brought a writ of entry for possession. R. L. c. 178, § 47. It is plain upon the findings recited in the record that, at the time of the conveyance from George A. Sprague to the petitioner, the grantor’s title to the land was complete and absolute. The respondent’s requests for rulings were properly refused.

The officer’s return on the second execution was in correct form and in substantial compliance with the statute. R. L. c. 178, § 49. Blake v. Rogers, 210 Mass. 588.

The respondent’s objection that the notice to the defendant as shown by the officer’s return upon the second execution was not in compliance with R. L. c. 178, § 44, cannot be sustained. The return as amended recites that the defendant at the time of the service thereof was living to the knowledge of the officer within his precinct. This recital must be taken as true. Blake v. Rogers, 210 Mass. 588, 594. The service was in compliance with the' statute R. L. c. 178, § 44.

As none of the rulings requested by the respondent, properly could have been made, the entry must be

Exceptions overruled.