161 Mass. 335 | Mass. | 1894
The statute under which this action is brought provides: “ When a mortgage of real estate has been foreclosed by a sale under a power contained therein or otherwise, the person entitled to the premises may recover possession thereof in the manner hereinafter provided.” Pub. Sts. c. 175, § 1. The subsequent provisions give a summary process by a writ issued by a police, district, or municipal court, or trial justice. If the plaintiff obtains judgment in the inferior court, and the defendant appeals to the Superior Court, he must, by § 7, give a bond or recognizance conditioned for the entry of the action, and the payment to the plaintiff, if the final judgment is in his favor, of all costs, and of a reasonable sum as rent of the premises from the day when the mortgage was foreclosed until possession of the premises is obtained by the plaintiff.
These provisions were taken from the St. of 1879, c. 237. The purpose of the statute was to furnish to the person entitled to the estate a speedy method of obtaining possession of it, in place of a writ of entry. Lowe v. Moore, 134 Mass. 259.
In Warren v. James, 130 Mass. 540, where the assignee of a mortgagee foreclosed by a sale to A., who nearly a month later sold to B., and he on the following day sold to C., it was held that C. could not maintain an action under the St. of 1879. This decision rested on the language of the recognizance or bond required to be given respecting the payment of rent. As was said by Mr. Justice Lord, in delivering the opinion of the court: “ If there may be one or more intermediate conveyances, the rent could not be due for the whole time to the, one who takes
The difficulty which presented itself in Warren v. James does not arise where the purchaser is the agent of the mortgagee, and the conveyance from the mortgagee to him and the conveyance from him to the mortgagee are simultaneous acts. We are of opinion, therefore, that in such a case an action may be maintained under the statute.
There can be no doubt of the authority of the treasurer of the plaintiff bank to collect the debt which was due by appropriate proceedings. If he had not authority to foreclose the mortgage by virtue of his office, he certainly had such authority when authorized to do so by the board of investment; and the subsequent proceeding is merely incidental to the powers which existed in him or were conferred upon him. See Bristol County Savings Bank v. Keavy, 128 Mass. 298 ; Holden v. Upton, 134 Mass. 177, 179; Smith Charities v. Connolly, 157 Mass. 272.
But if there can be any question as to the authority of the treasurer, the plaintiff, by accepting the deed and bringing this action, has ratified his doings. Exceptions overruled.
