103 Mass. 475 | Mass. | 1870
The assignee of the mortgage made a peaceable entry, for breach of condition, upon the mortgaged property, October 29,1861, and this entry was duly certified, sworn to and recorded, in compliance with the requirements of the Gen. Sts. c. 140, § 2. Whether, under the circumstances, the effect of that entry, and the lapse of three years without any attempt to fulfil the conditions of the mortgage, has been sufficient forever to foreclose the right of redemption, is the question submitted to the court.
The possession which the mortgagee is required to take and to maintain, in order to accomplish an effectual foreclosure of the mortgage, is by no means a personal occupation of the mortgaged estate by himself, or even the actual appropriation of the rents and profits. It is a formal entry, and a constructive rather than a literal taking of possession. It is of no importance that it produces no change in the occupation. It is not an entry for the purpose of literally ousting and expelling the mortgagor, but in the language of this court in Swift v. Mendell, 8 Cush. 357, 359, it is for the purpose of giving “ ample and full notice to the mortgagor that his right of redeeming will be gone in three years.” Even before the present system of certifying and recording the entry for breach of condition was established, it was not necessary that the entry and possession of the mortgagee should be notorious and public, but the object of the law was that “ the mortgagor may know when the three years commence, beyond which his right to redeem will cease.” See Thayer v. Smith, 17 Mass. 429, a case which certainly implies that actual notice to the mortgagor is equivalent to a continued possession. The registration of the certificate is a full and authoritative notice to all persons of the fact and date of the mortgagee’s peaceable entry; of the cause of such entry, namely, the breach of condition; and of his purpose to foreclose ; necessarily implying his intention to keep the possession he had lawfully acquired, for the term of three years. This makes the entry of the mortgagee a legal and binding act, as between the mortgagor and mortgagee, and affords full constructive notice of all the material facts to all other persons hay
There would seem then to be no doubt that the mortgage is effectually foreclosed, unless the suit brought by the insurance company, as assignees of the mortgage, against Moore R. Fletcher, and the recitals in their writ and in their deed of the premises to the defendant are to be deemed conclusive, as matter of law, upon the point that the mortgagee did not retain the possession which had been taken. But this plaintiff was not a party to that suit. He does not claim under any title derived since the commencement of that suit from Moore R. Fletcher. It is true that in a writ of entry the demandant describes himself as out of possession, and represents the tenant as for the time being in possession,, but as a wrongdoer, holding out the true owner. It is not uncommon for a party to elect .to consider himself as disseised, in order to try his title in a.real action ; and it is very clear that a party may admit the
It appears to us then that the mortgagee, who has that kind of possession which is necessary and sufficient for the purpose
For these reasons we hold the foreclosure, upon which the defendant relies, to have been effectual; and the order therefore must be Bill dismissed, with costs.