| Mass. | May 17, 1894
This is a writ of entry to foreclose a mortgage, tried before a justice of the Superior Court without a jury. The tenants excepted to the refusal of the court to rule that there was no evidence to warrant a finding for the demandant, and to certain rulings in regard to the admission of evidence. The defences principally relied upon were the statute of limitations, adverse possession of the premises maintained for more than twenty years prior to the commencement of the suit, and payment or satisfaction of the mortgage debt. The statute of limitations was not pleaded, and this fact alone might be a sufficient answer to the tenants’ claim under it at the trial. Moreover, this statute is not a bar to a writ of entry brought by a mortgagee against a mortgagor, unless it appears that the mortgagee was disseised by the mortgagor twenty years or more before the action was brought. Bacon v. McIntire, 8 Met. 87.
The lapse of time since the mortgage debt became due was such as to furnish a presumption of payment had there been no explanation of it. Kellogg v. Dickinson, 147 Mass. 432" court="Mass." date_filed="1888-10-18" href="https://app.midpage.ai/document/kellogg-v-dickinson-6422873?utm_source=webapp" opinion_id="6422873">147 Mass. 432, 437. But the evidence showed very clearly that the debt had not been paid. Indeed, the tenant contended that the mortgagee never intended to exact payment, nor to have the mortgage enforced. There was also evidence to justify the court in find
On the question whether there was a disseisin and an adverse use by the mortgagor and those claiming under him, continued for twenty years, there was ample evidence to warrant the finding against the tenants. See Holmes v. Turner's Falls Co. 150 Mass. 535" court="Mass." date_filed="1890-01-04" href="https://app.midpage.ai/document/holmes-v-turners-falls-co-6423358?utm_source=webapp" opinion_id="6423358">150 Mass. 535, 548.
Jonathan Anthony, the mortgagee, a resident of Portsmouth, Rhode Island, died on December 17,1870 ; his will was admitted to probate there on February 13, 1871, and Gould Anthony, the demandant, and Joseph Anthony, were appointed executors. On March 4, 1892, the will was proved in Massachusetts, and the demandant was appointed executor here. On December 13, 1878, one William Barker, acting under a power of attorney for the executors appointed in Rhode Island, made an open and peaceable entry upon the mortgaged premises, in the presence of two witnesses, for the purpose of foreclosing the mortgage, and caused a certificate to be made and recorded in accordance with the statute, and on the same occasion had an interview with the widow and a daughter of the mortgagor, who were then living on the premises. There was some conflict of evidence as to what occurred at this interview, and as to whether the tenant, Benjamin P. Anthony, was present. But there was evidence that a lease of the property for one year, running from the executors to Mary Ann Anthony, the widow of the mortgagor, signed for the lessee by the hand of her daughter, one of the tenants in this action, was then executed, and afterwards held by the executors. There was testimony that the widow and daughter of the mortgagor were told at that time that the executors were taking proceedings to foreclose the mortgage. The tenants objected, and excepted to the admission of evidence of the proceedings in this attempt to foreclose.
It is clear that executors appointed in another State cannot foreclose a mortgage in Massachusetts, and it is equally clear that, by their appointment in the place of the testator’s domicile, they acquire such a title to his personal property everywhere that they can properly receive and collect it, or take measures for the care and preservation of it, and take it to the place of
The only other exception which was argued was to the introduction of conversations and admissions of Mary Ann Anthony. She was the widow of the mortgagor, and after bis death was an owner of an interest in the mortgaged real estate. There was evidence tending to show that she continued in the actual occupation of the estate so long as she lived. The natural inference from the facts shown is, that her occupation, except as it was affected by the lease from the executors in Rhode Island, was under the provisions of Pub. Sts. c. 124, § 13, which permitted her to occupy with the rights of a tenant in common so long as there was no objection on the part of the heirs. It was contended by the tenants that this occupation was adverse to the demandant. Under these circumstances, her declarations which tended to show the nature of her occupation were competent to be considered, in connection with her conduct in remaining there, upon the question whether there should be a presumption of payment of the mortgage, and whether her possession was adverse to the mortgagee.
Exceptions overruled.