Mason , 1 Davis. L. Ct. Cas. 209 ( 1905 )

Title in tbis case rests on a foreclosure of mortgage by entry, made in 1901 by an agent of tbe mortgagee acting under a power of attorney tberefor. Tbe certificate of entry recorded in tbe registry of deeds under tbe provisions of Public Statutes Chap. 181, Sec. 2, was sworn to by tbe witnesses before tbe same person acting as a magistrate wbo bad just previously made tbe entry in question as attorney for tbe mortgagee.

That sucb a certificate cannot be sworn to before tbe mortgagee bimself is well established. Judd v. Tryon, 131 Mass. 345. It is' contended by tbe petitioner, however, that tbe present case does not come within tbe principle of Judd v. Tryon. That case is based squarely upon tbe obvious injustice of permitting a magistrate to act in a matter in which be bimself is tbe party directly in interest. There is no objection in tbis state to permitting an attorney to act as magistrate for tbe purpose of taking either an acknowl-edgement or a jurat in tbe course of proceedings which be is conducting for a client. On tbe contrary tbe advisability of tbis is well recognized. McDonald v. Willis, 143 Mass. 452. In cases like McDonald v. Willis, however, tbe magistrate certifies to tbe action of a person other than bimself, and as to sucb matters be is not disqualified as being a party in interest simply by reason of his employment as counsel in tbe cause. A suggestion is made by tbe Examiner in tbis case that the proper line of distinction to be drawn is at matters in which the attorney personally takes part, but it seems to us that the true criterion is rather that of interest.

In the present case the counsel for the mortgagee had a written power of attorney to make the entry. He acted under the power and the entry was made. Prior to the Revised Statutes nothing further was necessary. Prior to 1875 the presence of witnesses was not necessary. Under the present statute an entry is invalid unless a certificate under oath of two competent witnesses is made and recorded in the registry of deeds within thirty days after the entry. In taking such oath the attorney is no more a party in interest in the matter than is an attorney in any other case in which he takes a jurat. Usually an oath thus taken is the oath of the magistrate’s own client, in the present case the oath is that of two disinterested witnesses. Moreover “ in administering an oath to the witnesses who have made a certificate of entry upon land for breach of the condition of a mortgage, there is nothing in' the nature of a judicial proceeding.” Murphy v. Murphy, 145 Mass. 224.

While I find no decision covering this particular situation, I am satisfied on the whole that the entry was good, the oath properly administered, and the foreclosure valid. The owners of the alleged equity of redemption have been cited, and have had actual notice of these proceedings. There must be a decree for the petitioner.

So ordered.