Goodrich v. Willard

68 Mass. 203

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1854
• Status: Published

Opinion

Bigelow, J.

The debt secured by the mortgage to the defendant being payable on demand, a notice in writing by the mortgagee to the debtor of his intention to foreclose the mortgage was equivalent to a demand of the amount due on the notes, and constituted a breach of the condition of the mortgage. The fact, that the notice to foreclose, not being recorded, was insufficient to vest the absolute title to the property in the mortgagee, is immaterial. ' It was nevertheless equivalent to a demand of the amount due on the note seemed by the mortgage, and "so defeated the mortgagor’s right, under the covenant in the mortgage, to the possession of the property until breach of condition. The legal title to the property being in the defendant as mortgagee, and the right of the mortgagor to possession, under the special covenant therefor contained in the mortgage, being terminated by a breach of the condition, both the property and the right to its immediate possession become vested in the defendant as mortgagee. The plaintiff, as he claims under the mortgagor, and has no higher or better title than that acquired from him, cannot maintain an action of tort in the nature of trover against the defendant, because, he has neither the right of property nor of possession. jExceptions sustained.