Howe v. Lewis

Massachusetts Supreme Judicial Court

Howe v. Lewis

31 Mass. 329

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1833

StatusPublished

This text of 31 Mass. 329 (Howe v. Lewis) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howe v. Lewis, 31 Mass. 329 (Mass. 1833).

Pincite

Opinion

Wilde J.

delivered the opinion of the Court. This is an action of trespass quare clausum, and the defendant pleads soil and freehold in one Levi Farwell ; and the question is, whether the legal title was in him at the time of the supposed trespass. By the facts reported it appears, that the locus was part and parcel of a small farm, which had been before that time mortgaged to one Samuel Manning by one Samuel Wilder, under whom the plaintiff claims to hold ; that Samuel Manning had died before the time of the supposed trespass, and that Farwell was his executor. The legal estate, therefore, was in him, and there is no evidence that it has ever been released ; so that this action cannot be maintained, even if the mortgage has been paid off, as the plaintiff contends it has been.y On the breach of the condition of the mortgage, the estate of the mortgagee became absolute at law, and although the mortgager, by payment afterwards of the mortgage debt at any time before foreclosure, would become entitled to a reconveyance, and might well recover his title and possession by a suit in equity, yet it is clear he cannot maintain trespass against the mortgagee or any one holding under his title. Parsons v. Welles, 17 Mass. R. 419. And it is equally clear, that actual payment of the mortgage has never been made and completed, although a greater part of the money due has been deposited in the hands of the executor, which he will be bound to appropriate towards the payment and discharge of the mortgage. But as matters now stand, the mortgage cannot be considered as paid ; for it was agreed by the parties at the time .he money was deposited, that it should not discharge the mortgage. On no ground therefore can this action be maintained.

It has been objected to the plea, that the defendant does not ius'-fy under Farwell, as executor; but this is not material? [332]*332the legal estate was in him, and it was not necessary, in p-teaif ing, to allege in what capacity he held the estate.

Nonsuit to stand.

Free access — add to your briefcase to read the full text and ask questions with AI

Wilde J.

delivered the opinion of the Court. This is an action of trespass quare clausum, and the defendant pleads soil and freehold in one Levi Farwell ; and the question is, whether the legal title was in him at the time of the supposed trespass. By the facts reported it appears, that the locus was part and parcel of a small farm, which had been before that time mortgaged to one Samuel Manning by one Samuel Wilder, under whom the plaintiff claims to hold ; that Samuel Manning had died before the time of the supposed trespass, and that Farwell was his executor. The legal estate, therefore, was in him, and there is no evidence that it has ever been released ; so that this action cannot be maintained, even if the mortgage has been paid off, as the plaintiff contends it has been.y On the breach of the condition of the mortgage, the estate of the mortgagee became absolute at law, and although the mortgager, by payment afterwards of the mortgage debt at any time before foreclosure, would become entitled to a reconveyance, and might well recover his title and possession by a suit in equity, yet it is clear he cannot maintain trespass against the mortgagee or any one holding under his title. Parsons v. Welles, 17 Mass. R. 419. And it is equally clear, that actual payment of the mortgage has never been made and completed, although a greater part of the money due has been deposited in the hands of the executor, which he will be bound to appropriate towards the payment and discharge of the mortgage. But as matters now stand, the mortgage cannot be considered as paid ; for it was agreed by the parties at the time .he money was deposited, that it should not discharge the mortgage. On no ground therefore can this action be maintained.

It has been objected to the plea, that the defendant does not ius'-fy under Farwell, as executor; but this is not material? [332]*332the legal estate was in him, and it was not necessary, in p-teaif ing, to allege in what capacity he held the estate.

Nonsuit to stand.

Cite This Page — Counsel Stack

Bluebook (online)

31 Mass. 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-lewis-mass-1833.

Opinion

Related

Cite This Page — Counsel Stack