Nash v. Spofford

51 Mass. 192

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1845
• Status: Published

Opinion

Dewey, J.

The facts relied upon in defence are no sufficient answer to the present action.

1. The mortgagors (the tenants) are, by force and effect of their deed, estopped to deny that they had a good title to the estate conveyed, at the time of making the mortgage. Wilkinson v. Scott, 17 Mass. 257. Jackson v. Murray, 12 Johns. 201. As to the interest and estate of the wife, . when she joins with her husband in the conveyance of her land, with covenants of warranty, she is also estopped by her covenants. Fowler v. Shearer and Colcord v. Swan, 7 Mass. 14, 291. Wadleigh v. Glines, 6 N. Hamp. 17.

2. The new title acquired by the tenants, supposing the legal estate to be in Olive Cutting, and the tenants now to be holding under her, will not avail them. Her entry, and the tenancy by the tenants under her, were since the commencement of the present action. The tenants cannot set up such title thus acquired. Hall v. Bell, 6 Met. 431. Andrews v. Hooper, 13 Mass. 472. The doctrine of rebutter, to avoid circuity of action, is not admissible in such cases. The demand-ant may therefore recover upon the state of the title and possession shown at the time of the commencement of his suit.

Exceptions overruled.