Fay v. Valentine

22 Mass. 418

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1827
• Status: Published

Opinion

The opinion of the Court was afterwards delivered as drawn up by

Parker C. J.

We think the entry of the mortgagee to foreclose must be considered as having taken place at the time of the execution of her writ of possession, on her judgment upon the mortgage. Her writ against the mortgager admitted him to be then in possession, and her entry under the judgment, when seisin was delivered to her, shows that until that time the lawful seisin was in the mortgager. Her intermediate entry in pais, though avowedly for condition broken, cannot be considered as intended for the purpose of foreclosure, while her suit for recovery of possession was pending. Had she discontinued that suit, it might have been otherwise ; but to pursue that at the cost of the mortgager should be construed to be a waiver of her right to foreclose under that entry, and is similar in principle to the receipt of rent after a notice to quit; as in Bull. N. P. 96, and the other authorities cited.¹ Suppose these lots of land to have been vacant and unimproved ; what reason would the mortgager have to suppose an entry made, while an action was in court for the purpose of obtaining possession ? II such an entry is not fraudulent, it is at least calculated to deceive the mortgager, and expose him to the loss of his opportunity to redeem. Why should the mortgagee obtain her conditional judgment and eventually her execution, if she was already in possession for foreclosure ? The law will consider this act as an acknowledgment, that though in possession, she had not begun to foreclose, notwithstanding the formality of her entry. She chose to waive it and rely upon a foreclosure by judgment and consequent seisin. We are of opinion therefore that the plea is bad.

1 See 2 Stark. Ev. (5th Am. ed.) 306.