Brown v. Smith

116 Mass. 108, 1874 Mass. LEXIS 34

• Court: Massachusetts Supreme Judicial Court
• Decided: October 5, 1874
• Status: Published

Opinion

Gray, C. J.

The deed executed by Fay in his own name, as Well as in the name and as the attorney of the mortgagor, is expressly declared to be made by virtue of every other power and authority them thereto enabling, as well as by virtue and in execution of the power contained in the mortgage deeds. The affidavit as to the execution of the power of sale does not affect the legal operation of the deed in other respects. If it was not a valid execution of that power and therefore did not convey an absolute foe, it at least passed the mortgagee’s title to the grantee. Mrs. Smith, under his subsequent deed to her, has either an absolute title in fee, or a title in mortgage; and it is unnecessary and immaterial to the judgment in this action to consider which it is; for in either alternative, she being in possession after breach of the condition of the mortgage, the mortgagor, or any other person claiming title under him, cannot maintain a writ of entry against her. Parsons v. Welles, 17 Mass. 419.

The verdict directed for the demandant upon the ground that she took no title under the sale by Fay must therefore be set aside, and a New trial ordered.