Brouillard v. Stimpson

201 Mass. 236 | Mass. | 1909

RuGG, J.

This is a writ of entry. The demandant is a judgment creditor under a special attachment, and since the institution of his action has seasonably pursued his remedy under R. L. c. 178, § 47, as against the person then the holder of the, record title to the demanded premises. The tenants are holders of a title acquired by the foreclosure of a prior mortgage. The affidavit of sale filed in the registry of deeds in connection with the foreclosure recites a default in the payment of interest upon the note secured by the mortgage. The demandant has proceeded upon the theory that there was no such default. It is not necessary to pass upon the soundness of this contention, for it has been found as a fact not now open to discussion, that at the time of the foreclosure there was a default in the performance of the condition of the mortgage in that taxes were unpaid. The person foreclosing the mortgage is not estopped by the recitals of the affidavit to show what defaults actually existed. The statutory provisions ^* as to the affidavit are merely directory and the statements it contains are evidence only, and if the foreclosure is legally made upon any real default, it is valid without the recording of any affidavit or one which innocently states a wrong default. Atkins v. Atkins, 195 Mass. 124.

The principle is too well settled for extended discussion that extrinsic evidence was admissible to show that the mortgage was given for construction purposes, and that the full amount named had not been paid by the mortgagee for the reason that the conditions under which the balance was to be advanced were never complied with. The consideration named in a mortgage deed or note is open to inquiry and may be proved by oral evidence. Saunders v. Dunn, 175 Mass. 164. Hampden Cotton Mills v. Payson, 130 Mass. 88. There was not the slightest testimony that the original mortgagee had not advanced all that it had agreed to until further construction had been done upon the buildings on the land. There is no doubt as to the validity of the title acquired by the foreclosure.

But even if the foreclosure was illegal, the plaintiff could not maintain this form of action. After a foreclosure of a mortgage and possession taken by the mortgagee and those claiming under the mortgagee, the mortgagor and those claiming under him cannot maintain a writ of entry, the only remedy being in equity. Parsons v. Welles, 17 Mass. 419. New England Jewelry Co. v. Merriam, 2 Allen, 390. Brown v. Smith, 116 Mass. 108.

The demandant is plainly wrong in his contention that R L. c. 178, § 47, limits the remedy of a creditor under a special attachment to a writ of entry. Sewall v. Sewall, 139 Mass. 157. See Whittemore v. Swain, 198 Mass. 37.

The case is so clear that the exceptions appear frivolous. Therefore double costs are imposed.

Exceptions overruled.

* R. L. c. 187, § 15, as amended by St. 1906, o. 219, § 2.