108 Mass. 87 | Mass. | 1871
When Brown entered upon the premises for foreclosure, May 2,1863, his right was subject to the prior right of Benchley under his prior mortgage. As against Benchley he hd a mere equity of redemption. Two days later he sold to McIntyre, subject to the same right. When Benchley took possession under the first mortgage, April '26, 1864, he ousted McIntyre of his possession, and by his conveyance the next day to George W. Emerson, all his title and right of possession passed. The defendant might occupy under him so long as he lived. But by the death of George W. Emerson on August 27,1864, unmarried and without issue, his title would pass to his father, the defendant, subject to the rights of any administrator who may be appointed. Gen. Sts. c. 96, § 9.
But the defendant does not claim under an administrator, and it does not appear that one has been appointed. If one should appear, his rights will not be affected by this case. The defendant now sets up a defence of his possession under an agency from his son, George W. Emerson. But this has been terminated by the death of his principal.
McIntyre assigned his second mortgage to the plaintiff on December 25, 1865. This mortgage was a conveyance from the defendant with warranty, and the plaintiff entered and forbade the defendant occupying. The defendant afterwards entered and ploughed up a portion of the premises. As between these parties, the plaintiff’s title is perfect, and he had gained possession under it, and the defendant’s acts were tortious.
It is contended that Mclntyie was disseised at the time of his assignment of his mortgage to the plaintiff, and therefore no title
It is contended that the defendant may hold against the plaintiff under the first mortgage by descent from his son. He might do so if his second mortgage did not estop him. But his covenants in that mortgage are an estoppel against such a claim by him.
Exceptions sustained.
