Bell v. Buffinton

137 N.E. 287, 244 Mass. 294, 1923 Mass. LEXIS 835

• Court: Massachusetts Supreme Judicial Court
• Decided: March 2, 1923
• Status: Published

Opinion

De Courcy, J.

The petitioner claims title to two lots of land in Roxbury through the foreclosure of mortgages by entry and three years’ possession, under R. L. c. 187, §§ 1, 2. The entries were made on November 23, 1918, and the statutory certificates were recorded on December 12, 1918. The respondent was the original mortgagor, and his wife later became owner of the equity of redemption. He was in the military service of the United States from June 15, 1918, until August 28, 1919, and contests the validity of the foreclosures solely by reason of the soldiers’ and sailors’ civil relief act, U. S. St. 1918, c. 20, § 302; 40 U. S. Sts. at Large, 444.

Section 302 restricts sales under powers, and under warrants to confess judgment; but it has no application to mortgage foreclosures by entry and possession under R. L. c. 187, § 1. John Hancock Mutual Life Ins. Co. v. Lester, 234 Mass. 559, 561. See Morse v. Stober, 233 Mass. 223, 226. Presumably Congress did not deem such extraordinary relief measures necessary where the title of the mortgagor would not be foreclosed until the possession by the mortgagee had continued for three years.

The respondent further contended that by virtue of § 205 of said soldiers’ and sailors’ act the term of possession could not begin to run against him until his discharge from the army in August, 1919. That section merely provides that the period of military service shall not be included in the time limited by statutes for the bringing of actions. See Halle v. Cavanaugh, 79 N. H. 418; Steinfield v. Massachusetts Bonding & Ins. Co. 79 N. H. 422. R. L. c. 187, § 1, under which the foreclosure was made, is not a statute of limitations; and said § 205 has no application to proceedings under it.

No error is shown in the rulings, refusals to rule, or order for a decree, made by the Land Court.

Exceptions overruled.