Clark v. Crosby

101 Mass. 184 | Mass. | 1869

Chapman, C. J.

This is a bill in equity to redeem the land therein described, situate in the city of Lowell. Both parties claim title under James Adams, who executed a mortgage to the defendant William P. Déan, October 4,1852. He conveyed bis interest, subject to the mortgage, to Timothy D. Taylor, August 25,1854, and it was sold on execution to the plaintiff, July 27,1861.

The defendants contended that the mortgage had been foreclosed. It was recorded in the registry of deeds at Cambridge, October 11, 1852. Dean, the mortgagee, made an entry for foreclosure, in presence of witnesses, on November 25,1857. But in the mean time the St. of 1855, c. 79, had established a registry of deeds in the northern district of Middlesex, including the city of Lowell; and the additional act, St. 1856, c. 254, required that all instruments relating to real estate situated in the northern district, required by law to be recorded in a registry of deeds, should be recorded in the registry of the northern district, and that such registration thereof should be effectual and sufficient for all purposes, so far as the place of registration is concerned. Dean recorded his certificate of possession in the northern district November 27,1857. It is objected that this registration of the notice was insufficient; but the court are of opinion that it is clearly within the terms of the statutes.

William P. Dean conveyed his interest to his mother, Susan Dean, October 4,1859, and she conveyed to the defendant Crosby, December 21,1861. While Mrs. Dean was in possession, namely, November 13,1860, she executed an instrument to Isaac Pit-man, in which she promised that if he should pay her within a time stipulated a certain amount, which was equal to the amount due on the mortgage with interest, she would release the premises to him. On May 24,1861, she executed another instrument to Samuel Fay, of a similar purport, and he assigned it to James W. Rollins. It is contended that each of these instruments operated as a waiver of the foreclosure, or an extension of the time of foreclosure. But the answers to this suggestion are obvious. When the instrument was made to Pitman, her title had already become absolute by the lapse of three years after the entry. Neither Pitman nor Fay had any interest in the equity, or any privity with the plaintiff. Nor did either of them ever comply with the condition by payment or tender of the money. Nor does it appear that Rollins, the assignee of the instrument made to Fay, ever made any agreement with Mrs. Dean in respect to the foreclosure. The facts stated by Taylor in his testimony, that the instruments were executed for his benefit, and that he suggested tine foreclosure, do not appear to be material. No fact appears which has any tendency to show that the foreclosure was not perfected before the bill was filed.

Bill dismissed, with costs.