Hennessey v. Andrews

60 Mass. 170, 6 Allen 170

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1850
• Status: Published

Opinion

Shaw, C. J.

The only question in this case is, whether this complaint for flowing is rightly brought against Charles Andrews, as owner. Rev. Sts. c. 116, § 6.

The respondent insists that he was not owner, but only a mortgagee not in possession, because the deed, which he had taken of Wood, in November, 1849, was accompanied by a bond of defeasance, which made it in law a mortgage. But the answer, and we think it decisive, is, that the bond of defeasance was not registered, until after the complainant’s suit was brought, and by statute was wholly inoperative and void, as a defeasance, against any person but the maker and his heirs or devisees, or persons having actual notice of such defeasance. Rev. Sts. c. 59, § 27. The continued possession by the grantor is no evidence of notice of the defeasance. Newhall v. Pierce, 5 Pick. 450; Newhall v. Burt, 7 Pick. 157.

Judgment for the plaintiff.