Taylor v. Dean

89 Mass. 251

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1863
• Status: Published

Opinion

Chapman, J.

The defendant Fanny Dean had made a mortgage to the defendant Margaret S. Dean, and the plaintiff, having recovered judgment against Fanny, caused the equity of redemption to be sold on his execution, and became the purchaser. He seeks as such purchaser to have the sale declared null and void, because he says the mortgage was fraudulent against creditors, and was without good consideration.

But a creditor who becomes the purchaser of the equity has no right to contest the validity of the mortgage on this ground. Russell v. Dudley, 3 Met. 147. Gerrish v. Mace, 9 Gray, 235. And if the mortgage .is to stand as to him, the equity of redemption is no less valuable because the mortgage is fraudulent. He gets what he purchased; and he voluntarily offered at Tie auction the price which he paid for it.

But he farther says that Fanny fraudulently gave to Margaret a certificate upon the mortgage that she had given to her possession of said mortgaged property ; that the certificate was properly recorded on the same day, and that three years have since elapsed, so that the mortgage is foreclosed. On the alleged ground that this transaction was fraudulent, and did not come to the knowledge of the plaintiff till after the lapse of three years, he seeks to have the foreclosure set aside, and to be let in to redeem the mortgage, if he cannot avoid it. But these acts cannot possibly be fraudulent. The mortgagor had a right to give the certificate and the mortgagee to take it, without giving notice to him. The statute makes the registry of the certificate constructive notice to him, and the duty of examining the records to see whether any such certificate is there is upon him. He has lost his right by neglecting to attend to it.

Demurrer sustained. Bill dismissed, with costs.