Freison v. President of Bates College

128 Mass. 464, 1880 Mass. LEXIS 116

Opinion

Gray, C. J.

The demandant contends that the mortgage deed executed in 1869 by her alone, without her husband’s concurrence or assent, or a judge’s approval, was void, tinder the statute then in force and the decisions of this court. Gen. Sts. c. 108, § 3. Concord Bank v. Bellis, 10 Cush. 276. Weed Sewing Machine Co. v. Emerson, 115 Mass. 554. But the decisive answer to this position is that the conditional judgment rendered against her, after she had appeared and pleaded (as she was competent to do; St. 1874, c. 184, § 3;) in the former writ of entry brought to foreclose the mortgage, conclusively establishes the validity of the mortgage, the amount due thereon, and the right of the then demandants to hold the land on non-payment of that amount, and estops her to litigate any of those matters anew against the same parties or their assigns. Gen. Sts. c. 140, §§ 3-5. Adams v. Barnes, 17 Mass. 365. Burke v. Miller, 4 Gray, 114. Sparhawk v. Wills, 5 Gray, 423. Stevens v. Miner, 5 Gray, 429 note, and 110 Mass. 57. Exceptions overruled.