Amory v. Fairbanks

3 Mass. 562

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1793
• Status: Published

Opinion

Upon oyer of the bond and condition, the defendants pleaded in bar that, on the day when the said bond was executed, they conveyed to him, the said Amory, in fee and in mortgage, a certain tract oi parcel of land in Framingham, &c. [describing it], which same lands were conveyed as collateral security for the performance of the condition of said bond, and that the said Amory thereafter, because the defendants had not performed the condition of said bond, on the ninth day of April, 1789, entered into and took possession of the said mortgaged premises for the same debt, and has yet had, and now hath the peaceable possession and seisin of the same, and this they are ready to verify; wherefore they pray judgment, &c.

To this plea the plaintiff demurred generally; and the defendants joined in demurrer.

The Court overruled the plea in bar; whereupon the defendants confessed the forfeiture of the bond, and prayed to be heard in chancery.

Judgment was rendered that the plaintiff recover the amount of the penalty of the bond declared on; and execution was awarded “ for the sum of £185 10s. 9d., part of the [ * 563 ] *said penalty, being the balance due on said bond, after deducting the value of the land according to appraisement.”

Note. This is the case cited in Neivall Al., Administrators, vs. fFright, ante, page 150.