236 Mass. 332 | Mass. | 1920
The defendants mortgaged to the plaintiff a parcel of real property and, the conditions of the mortgage having been broken, the mortgagee made a peaceable entry upon the premises on July 2, 1915, for the purposes of foreclosure, and thereafter remained in uninterrupted possession for more than three years, collecting and retaining the rents and profits. But no memorandum or certificate of the entry was recorded as required by the statute. A second entry for the purpose of foreclosing the mortgage was made by the plaintiff on January 22,1919, and the certificate required by B. L. c. 187, § 2, was duly made and recorded within thirty days after the entry. The mortgage having contained a power of sale, the mortgagee also sold the property on or about January 30,1919, and the deed to itself, which we assume was authorized by the power, was duly recorded. The net proceeds of the sale and the net income from the rents and profits having been credited, the present action is brought to recover the unpaid balance of the
We are of opinion that the ruling was wrong. The foreclosure and redemption of mortgages are regulated by statute. By R. L. c. 187, § 1, a mortgagee may, after breach of the conditions of a mortgage of land, recover possession of the premises by an open and peaceable entry on the land if not opposed by the mortgagor or any person claiming under him, and such possession so obtained, if continued peaceably for three years, shall forever foreclose the right of redemption. But by § 2 a memorandum of the entry shall be made on the mortgage deed and signed by the mortgagor or by the person claiming under him, or a certificate under oath of two competent witnesses shall be made and recorded within thirty days of the entry with certain exceptions not material in the present case, and that, unless such record is made, the entry shall not be effectual for the purposes mentioned in the preceding section. The statute not having been complied with, the first entry was not effectual to foreclose the mortgage. Judd v. Tryon, 131 Mass. 345, 346, and cases cited. Morse v. Bassett, 132 Mass. 502, 509. Tompson v. Tappan, 139 Mass. 506. Murphy v. Murphy, 145 Mass. 224, 226. Hayden v. Peirce, 165 Mass. 359, 364. If there was no completed and valid foreclosure then there was no payment of the mortgage debt to the extent of the value of the land when the entry was made. Amory v. Fairbanks, 3 Mass. 562. Morse v. Merritt, 110 Mass. 458, 460. Dooley v. Potter, 140 Mass. 49, 58, 59.
The defendants rely on Field v. Gooding, 106 Mass. 310, and Robbins v. Rice, 7 Gray, 202, 203, as authorities that under the first entry there was as between the parties an effectual foreclosure. The question in Field v. Gooding where the foreclosure was under a power of sale was whether the sale was rendered invalid because the mortgagee did not within thirty days after selling the property file a copy of the notice and his affidavit “setting forth his acts in
While a certificate of the second entry was made and recorded the foreclosure as yet has not become compílete by lapse of time. The right, however, to foreclose by sale having been given by the mortgage and the power under the conditions shown appearing to have been validly exercised, the title passed to the plaintiff. Mann v. Earle, 4 Gray, 299, 300. It seems to have been uncontroverted that the value of the premises as ascertained by the sale, with the rents and profits received, did not equal the amount of the debt, and, the security being insufficient, the plaintiff can recover the balance due on the note. Draper v. Mann, 117 Mass. 439, 441.
It follows that the exceptions must be sustained.
So ordered.