Murphy v. Welch

128 Mass. 489 | Mass. | 1880

Ames, J.

It appears from the report that the lots belonging to these parties respectively were both of them, in August 1856, owned by Michael Pendergrast, and were at that time but one Lot. Of course, while they continued to be in his ownership, it would be impossible that there could be such an adverse use as would create an easement in favor of one of the lots within the limits of the other. On the sixth day of that month, Pendergrast mortgaged the lot now held by the plaintiff to the Lowell Mutual Loan and Fund Association, and in that mortgage no reservation or provision of any kind was made for the creation or use of a passageway for the common benefit of the two lots. On the contrary, the mortgage includes in its description the strip of land four feet in width over which the defendant claims the right of passage. For the purposes of this trial, it was correctly ruled to be immaterial whether the foreclosure sale by the association was valid or not. Whatever title the association had in the mortgaged premises was effectually transferred, either by that sale or by the assignment of the mortgage, to the parties from whom the plaintiff derives his title; and it appears that possession of the premises was taken by his grantors, under their conveyance from the association, as early as June 1, 1858. The assignment of the mortgage under which the plaintiff claims purports on its face to be the deed of the corporation, under its seal, affixed by its president duly authorized for that purpose, and acknowledged to be the free act and deed of the association, and signed by its president by its authority. This is sufficient to remove all objection on the ground that it is not duly executed. Hutchins v. Byrnes, 9 Gray, 367. Pitman v. Kintner, 5 Blackf. 250.

It is true that the defendant’s occupation and use of the passageway began as early as August 1856, but it cannot be said at that time to have had any of the characteristics of an adverse use. On the contrary, it was by virtue of a conveyance of the owner of the equity of redemption, and could have no effect upon the rights of the mortgagees and those claiming under them. A mortgagor can make no lease or contract respecting the mortgaged premises effectual to bind the mortgagee or prejudicial to his title. Perkins v. Pitts, 11 Mass. 125, 130. Exclusive possession by a mortgagor and those claiming under him, with a claim of exclusive ownership, does not of itself amount to a disseisin of the mortgagee so as to invalidate a transfer of the mortgage title. There is nothing in the facts reported to show that any claim adverse to the mortgagee was known to the association. Sheridan v. Welch, 8 Allen, 166.

The plaintiff claims under the older and paramount title; and, as the defendant fails to show any adverse enjoyment covering twenty entire years before the suit was brought, there must be

Judgment on the verdict.