Weed Sewing Machine Co. v. Emerson

115 Mass. 554, 1874 Mass. LEXIS 248

Opinion

Gray, C. J.

In order to maintain this action, the demandant must show a legal title. Adams v. Parker, 12 Gray, 53. And no such title is shown.

The mortgage made by Mrs. Harrington, her husband not assenting to or joining therein, was absolutely void. Gen. Sts. c. 108, § 3. Concord Bank v. Bellis, 10 Cush. 276. Lowell v. Daniels, 2 Gray, 161. Warner v. Crouch, 14 Allen, 163. In Concord Bank v. Bellis, it was adjudged by this court, for reasons fully stated in the opinion delivered by Chief Justice Shaw, that such a mortgage was not made valid by being executed and delivered at the same time as the deed by which the wife acquired the estate. The rule, thus declared twenty years ago, cannot be reversed by the court without the danger of unsettling titles which have been taken in reliance upon it.

The assignment from Hutchins to the demandant, containing no covenants of warranty, was of such title only as he then had under the mortgage, and did not estop him to set up any title afterwards acquired. Merritt v. Harris, 102 Mass. 326. The description of the premises, in his subsequent deed thereof, as subject to this mortgage, and the exception of the mortgage out of his covenants in that deed, were for the purpose of protecting him from liability upon his covenants, and can have no effect to charge his grantee in this action. Judgment on the award for the tenant.