Hackett v. Buck

128 Mass. 369, 1880 Mass. LEXIS 87

Opinion

Gray, C. J.

The St. of 1874, c. 188, has changed the law so far as to authorize an estate not subject to mortgage to be levied upon by sale instead of by extent, but not so far as to authorize the officer to levy upon, advertise and sell such an estate as an equity of redemption, or to sell less than the entire estate which is at the time of the beginning of the levy bound by the lien of the attachment. In this case, by the discharge oí the mortgage, after the attachment and before the levy, the equity of redemption had ceased to exist; the advertisement that the right to be sold on execution was an equity of redemption only, tended to limit to the prejudice of the debtor the sums bid at the sale; and the deed of the officer, being in terms limited to the right in equity, which had ceased to exist and which could not be revived by any act of his, was a nullity, and passed no title to the purchaser. Freeman v. M’Gaw, 15 Pick. 82. McGregor v. Williams, 10 Cush. 526. Perry v. Hayward, 12 Cush. 344. Gardner v. Barnes, 106 Mass. 505.

Judgment affirmed.