Field v. Gooding

106 Mass. 310

Opinion

Colt, J.

Footnotes

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The defendant’s title is derived from a sale under a power contained in a mortgage deed. The wife of the mortgagor was the purchaser at the sale, and afterwards conveyed to the defendant. She thus holds the premises freed from any right of redemption in the plaintiff, who claims under a later conveyance from the mortgagor, unless there is something either in the fact that the sale was to the wife of the mortgagor, or in the further fact that no copy of the notice was filed with the affidavit of the sale, within the time required by the statute, in the registry of deeds, to defeat her absolute title.

As to the first, we see no reason why the wife of the mortgagor may not become a purchaser under the power of sale, and hold the estate as her sole and separate property, when the conveyance is made to her in the name of the mortgagee. The technical objection, that the husband cannot directly convey to his wife, does not apply. It is conceded that she may take as assignee of the mortgage. In this case, at the time of the sale to her, the husband had conveyed whatever interest he had in the equity of redemption. It is not like Stetson v. O'Sullivan, 8 Allen, 321, where an equity of redemption was sold on execution to the wife of the judgment debtor. That was the exercise of a statute power only; no title was ever in the officer making the conveyance ; leaving in the husband an equity of redemption which could only be enforced by suit between him and his wife.

It is further insisted that the statute provision requiring that the mortgagee, in case he should proceed to sell without a decree of court, shall file a copy of the notice of sale, and an affidavit of his doings, within thirty days, in the registry of deeds, is peremptory, and, if not complied with, the sale itself becomes void and no title passes. This is not, in the opinion of the court, a sound interpretation of the statute. The provision is intended to secure the preservation of evidence that the conditions of the power of sale named in the deed have been complied with. It is for the protection of those claiming under the sale, and to prevent litigation. The title passes by the sale and deed, and immediately vests in the purchaser. It was not the intention to make it subject to a condition subsequent, and liable to be defeated by a failure of the mortgagee to perform an act which must follow the conveyance in point of time; and thus add to the conditions prescribed by the mortgagor in the deed. If this was the purpose of the statute, its language would have been more explicit. As it is, its provisions must be regarded as directory, and not precluding a resort to other evidence that the power of sale was duly executed. The mortgagor cannot complain, if the conditions he has chosen to insert in the deed have been in fact complied with. It is to be noticed, that this provision first appeared in 1857 in an act (St. 1857, c. 229) entitled “ an act to perpetuate the evidence of title to real property obtained under mortgage deeds containing a power of sale; ” and although the title is no part of an act, yet, where the enacting clause is doubtful or too general, the title may be resorted to for explanation, or in restraint of its generality. Henry v. Estey, 13 Gray, 336. Wilson v. Troup, 2 Cowen, 195. Arnot v. McClure, 4 Denio, 41. Tuthill v. Tracy, 31 N. Y. 157. Bill dismissed, with costs.

This case was argued in June 1871, before all the judges except Morton, J.