Cuffee v. Milk

51 Mass. 366

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1845
• Status: Published

Opinion

Wilde, J.

The demandant claims under the will of his grandfather, Paul Cuffee, who died seized of the demanded premises. The words of the devise are, “ also, I give to my son William Cuffee, and to his oldest male heir forever, the lot of land which I bought of Ebenezer Eddy, called the Allen lot.” Some personal property also was bequeathed to the said William, together with $300 to enable him to build a house on the lot devised.

It was contended on the part of the demandant, at the trial, that he, being the eldest son of the said William, took a remainder under the will; but this construction of the will tías not been maintained at the argument, and it is very clear that the estate devised to William was an estate tail.

The only question therefore is, whether the entail was barred by the deeds and the proceedings reported; and we are of opinion that it was so barred. It is true that the estate tail was not barred by the mortgage deed, as the whole estate was not thereby conveyed, within the meaning of St. 1791, c. 60, $ 1. But the mortgagor’s equity of redemption was afterwards legally seized and sold on execution to the tenant and Bradford Howland, and by this seizure and sale William Cuffee was divested of his whole remaining estate and interest in the mortgaged premises; and under the second section of the statute the bar was complete.

It was objected that the deputy sheriff’s deed was not effectual to complete the bar, because it was not executed before two witnesses, as required by the first section of the statute. But this deed conveyed the mortgagor’s right and title, by virtue of the second section, which declares all estates in fee tail to be subject to the payment of the debts of the tenant in tail, in the same way and manner as other real estates are liable and subject; and it cannot be questioned that the deputy sheriff’s sale would have been valid, if the mortgagor had held the estate in fee simple. If, however, there had been any defect in the seizure and sale of the equity, the same would have passed by the deed of release of the said William Cuffee to the tenant, which was executed in the presence of two witnesses, and was made bona fide and for a valuable consideration, as the statute requires. But, in the opinion of the court, the deputy sheriff’s sale was effectual to convey the mortgagor’s equity of redemption, and no confirmation of the tenant’s title was necessary.

The verdict is to be altered and amended, so as to stand as a verdict for the tenant, and judgment thereon is to be renderel accordingly.