Thompson v. Kenyon

100 Mass. 108

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1868
• Status: Published

Opinion

Foster, J.

Under the statutes providing for the foreclosure of a mortgage by open and peaceable entry on the mortgaged premises and possession thereof continued peaceably for three years, an entry is peaceable if not opposed by the mortgagor or person claiming the premises, and sufficiently open if made in the presence of two competent witnesses whose certificate thereof is sworn to and duly recorded within thirty days in the ' registry of deeds for the county where the land lies. Gen. Sts. c. 140, §§ 1, 2. The certificate is not in terms required to state that the entry was open ; and it is enough that it states in the present case that it was in the presence of the two witnesses. The signature of a marksman was sufficient in this case, as in all others, even the attestation of a will.

The mortgagor, the plaintiff, just before the three years’ possession expired, filed a bill to redeem against Fawcett, the assignee of the mortgagee, and the one by whom the entry had been made; pending this bill Fawcett assigned his interest to the defendant by quitclaim deed; subsequently that suit was abandoned by the entry of “ neither party.” The conveyance pendente lite did not affect the suit in equity to redeem. When that was discontinued, the defendant succeeded to all Fawcett’s rights, and held the estate by an indefeasible title under a completed foreclosure. We discover no foundation for the suggestion that Fawcett’s conveyance to the defendant was a release either of the mortgage or its foreclosure. It was an assignment of the mortgage, and of all Fawcett’s rights under it.

The certificate of the entry is made by statute evidence of the fact. Oakham v. Rutland, 4 Cush. 172. Bill dismissed.