Cochran v. Goodell

131 Mass. 464 | Mass. | 1881

Gray, C. J.

The objection of misjoinder of the plaintiffs cannot prevail. A writ of entry to foreclose a mortgage under the Gen. Sts. c. 140 differs from an ordinary writ of entry, and is in the nature of a bill in equity, and governed by the same rules as to parties and relief. Webster v. Vandeventer, 6 Gray, 428. Holbrook v. Bliss, 9 Allen, 69. The two mortgages from the defendant Goodell to the plaintiffs severally, to secure several obligations, having been given at the same time, the two mortgagees were tenants in common, and their rights were the same as if one mortgage had been made to both, to secure to each his separate debt. Burnett v. Pratt, 22 Pick. 556. Howard v. Chase, 104 Mass. 249. Either of them might have enforced his mortgage by separate suit, if necessary to secure his rights. Burnett v. Pratt, above cited. Gilson v. Gilson, 2 Allen, 115. But there is no doubt that by the rules of chancery practice both may join in one suit, and it is usually convenient that they should, in order that the rights of all parties may be determined at once. Lowe v. Morgan, 1 Bro. Ch. 368, and Belt’s note. Palmer v. Carlisle, 1 Sim. & Stu. 423. 1 Dan. Ch. Pract. (5th Am. ed.) 212. Johnson v. Brown, 11 Foster, 405. Noyes v. Barnet, 57 N. H. 605. And by our statutes, tenants in common may join even in a common law writ of entry. Gen. Sts. e. 134, § 9.

The merits of the case have hardly been argued by the defendant, and are disposed of by two well-settled rules: 1st. A second mortgagee may maintain a writ of entry to foreclose against the first mortgagee and owner of the equity of redemption. Palmer v. Fowley, 5 Gray, 545. Doten v. Hair, 16 Gray, 149. Cronin v. Hazletine, 3 Allen, 324. Kilborn v. Robbins, 8 Allen, 466. 2d. A sale on execution of part only of the lands included in one mortgage passes no title. Webster v. Foster, 15 Gray, 31. • Judgment for the plaintiffs.