Dewey v. Bulkley

67 Mass. 416

Opinion

Shaw, C. J.

*

The respondents claim title under a mortgage, and that mortgage is on record. The petitioners may meet with difficulties in disposing of the land; but no reason is shown why the respondents should be obliged to bring an action to enforce a mortgage, held by them merely as security for the payment of the mortgagor’s debt to the partnership, of which he and they were members. But the more decisive ground for dismissing this petition is, that the petitioners, if they deny the validity of the mortgage altogether, as one fraudulent against creditors, can bring a writ of entry themselves to try the title; and the defendants in their plea would be obliged to admit or deny the petitioners’ title. If the validity of this mortgage is disputed on the ground of fraud, as was said in argument, the petitioners should have stated in their petition whether they admitted the mortgage or not. All that appears upon the petition and answer is, that the petitioners, by the assignment made by the commissioner of insolvency to them, acquired the estate of the insolvent debtor in the premises, which was subject to a prior mortgage on record, the validity of which they nowhere deny. These estates are prima facie consistent with each other.

Petition dismissed.

Dewey, J. did not sit in this case.