Lewis v. Jackson

165 Mass. 481 | Mass. | 1896

Knowlton, J.

1. The amendment of the complaint was rightly allowed. It was merely making the description of the premises complete and accurate, which before was imperfect and general. Pub. Sts. c. 167, § 42.

2. The mortgagees in the mortgage, and the grantors in the deed made under the power of sale, and the affiants in the affidavit of sale, were sufficiently and correctly described.

3. The bill of exceptions discloses no material error in the affidavit of sale. The use of the word “ it,” instead of the plural “they,” is obviously a grammatical error which does not affect the meaning.

4. The plaintiff was not bound to prove that the defendant continued in possession of the premises up to the time of the trial. His action can be maintained upon proof that the defendant was in possession without right when the suit was brought. Hebron Church v. Adams, 121 Mass. 257.

5. The defendant contends that a verdict cannot be rendered for the plaintiff for want of proof of notice to the defendant that the mortgage had been foreclosed and that the plaintiff had acquired a title. The case shows that the deed and affidavit of sale under the mortgage were duly recorded. They bear date April 1, 1893, and the action was not commenced until November 6, 1893. The record of a deed is constructive notice of the conveyance to all persons claiming property under a title which is subject to the title conveyed by the deed. The Pub. Sts. c. 175, § 1, give a purchaser, at a sale under a power contained , in a mortgage of real estate, the right to recover possession by this summary process, and treat his right and title as complete when the foreclosure is completed. If we assume in favor of the defendant, without deciding, that it would be a defence to the action to show that it was commenced without actual notice " to him of the change in title and a reasonable opportunity to remove his effects from the premises, (see Pratt v. Farrar, 10 Allen, 519,) we are of opinion that the statute gives the plaintiff a right to bring his suit that is prima facie good upon the completion of the foreclosure, and the recording of the deed and affidavit of sale. If the defendant is entitled to notice of the change of title, and an opportunity to remove his property, it is upon equitable grounds, and not because he has any longer a legal title to the premises. If injustice is done him by bringing an action without giving him such notice, it is a matter which should be shown in defence. In Hooton v. Holt, 139 Mass. 54, it was held that, if the action was brought too soon after the defendant had notice of the change in the title, it was a matter to be shown by him.

Ho issue upon this point was raised by the defendant’s answer in the present case, and no evidence was offered by him at the trial. . Exceptions overruled.