105 Mass. 265 | Mass. | 1870
It appears that the petitioner, having an execution against the respondent, levied it upon the real estate in question on May 27, 1858. The appraisers recite that the respondent owns the land in common with Christopher C. Alger; they appraise the whole at $500, and the share of the respondent at $250; and they certify that, as the same cannot be divided without damage to the whole, and is more than sufficient to satisfy the execution, they appraise at $203.07, and set off that part to the petitioner in satisfaction of her execution.
By the terms of the mortgage, the mortgagee was entitled to take possession before condition broken, there being no clause reserving the right of possession to the mortgagor. The legal title was also in him. But it was not an absolute title, and until foreclosure, when the mortgagee becomes the absolute owner, the mortgage is deemed to be a lien or charge, subject to which the estate may be conveyed, attached, and in other respects' dealt ydth as the estate of the mortgagor. Ewer v. Hobbs, 5 Met. 3. Page v. Robinson, 10 Cush. 99. Bradley v. Fuller, 23 Pick. 1. As the estate of the mortgagee was of this peculiar character, and subject to be terminated by the mere act of paying the. debt at any time before its maturity, and by bill in equity afterwards, we do not think he was a tenant in common with his mortgagor, so as to entitle the mortgagor to have a partition of the other part of the land. Nor was it necessary for the petitioner to levy her execution in that manner. She might have procee led under the provisions of the Gen. Sts. c. 103, § 33 seq., dealing with the mortgage as an incumbrance of which she could become assignee by § 37. Petition dismissed.