Pettee v. Case

Massachusetts Supreme Judicial Court

Pettee v. Case

77 Mass. 478

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1858

StatusPublished

This text of 77 Mass. 478 (Pettee v. Case) 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

Pettee v. Case, 77 Mass. 478 (Mass. 1858).

Pincite

Opinion

Metcalf, J.

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The parties have agreed that this action shall stand for trial if the tenants are entitled to show by paroi evidence that there had been no breach of condition of the mortgage when entry was made for an alleged breach of it. And the court have no doubt that they are so' entitled. It is only “ after breach of the condition of a mortgage,” that a mortgagee or his assignee can make an open and peaceable entry on the mortgaged premises for the purpose of foreclosure, and, after recording a certificate of such entry, effect a foreclosure by keeping possession peaceably for three years. Rev. Sts. c. 107, §§ 1 2,7. A record of such certificate is prerequisite to a foreclosure but is not conclusive evidence that the mortgagee had a legal right thus to enter. Case to stand for trial.

This and the following cases for this term were argued at Boston in January 1859 before Shaw, C. J., Dewet, Metcalf and Bigelow, JJ.

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Metcalf, J.

*

The parties have agreed that this action shall stand for trial if the tenants are entitled to show by paroi evidence that there had been no breach of condition of the mortgage when entry was made for an alleged breach of it. And the court have no doubt that they are so' entitled. It is only “ after breach of the condition of a mortgage,” that a mortgagee or his assignee can make an open and peaceable entry on the mortgaged premises for the purpose of foreclosure, and, after recording a certificate of such entry, effect a foreclosure by keeping possession peaceably for three years. Rev. Sts. c. 107, §§ 1 2,7. A record of such certificate is prerequisite to a foreclosure but is not conclusive evidence that the mortgagee had a legal right thus to enter. Case to stand for trial.

This and the following cases for this term were argued at Boston in January 1859 before Shaw, C. J., Dewet, Metcalf and Bigelow, JJ.

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Bluebook (online)

77 Mass. 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pettee-v-case-mass-1858.