Eames v. Snell

9 N.E. 522, 143 Mass. 165, 1887 Mass. LEXIS 246

Opinion

Holmes, J.

A mortgage alone is no evidence of the mortgagor’s title or possession. Gibbs v. Childs, ante, 103. It is unnecessary to decide whether, when the property belonged to one of two persons, both of whom handled it, and the only question is, which was owner and had possession, and which was only an agent' or servant, the execution of a mortgage by one, witnessed by the other, would or would not be some evidence that the property belonged to the mortgagor, because, as we understand the bill of exceptions, there was independent evidence that the mortgagor was in possession when he made the mortgage. If he was, then making the mortgage was an act of dominion, and was some evidence of title. See Farwell v. Rogers, 99 Mass. 33.

Exceptions overruled.