130 Mass. 25 | Mass. | 1880
The title to the land in question depends on the validity of proceedings to enforce a mechanic’s lien. At the
It is required by statute that the officer shall give notice of the time and place of sale, in the manner prescribed in relation to sales on execution of rights of redeeming mortgaged lands, unless the court otherwise orders. Gen. Sts. c. 150, § 23. And it is provided that in sales of equities of redemption the officer shall give notice in writing of the time and place of sale to the debtor, if found within his precinct, thirty days at least before the sale. Gen. Sts. c. 103, § 41. The original statute of 1798, c. 77, § 4, required the officer in such cases to give notice to the debtor in person, or by leaving the same at his last and usual place of abode. The commissioners for the first revision
In the case at bar, there was no special order of the court directing the mode of service, and the officer, assuming Mrs. Tabbut to be the proper person to receive it, left a written notice of the sale at her last and usual place of abode, and gave no other notice except by publication. It appears that Mrs. Tabbut
Judgment for the demandant.
A similar decision was made on the same day in Suffolk in the case of E. B. Welsh vs. William Macomber.
Writ of entry to recover a parcel of land in Boston. The case was submitted to the Superior Court, and, after judgment for the demandant, to this court on appeal, on the following agreed facts:
The demandant claims title under a sheriff’s deed of the tenant’s equity of redemption in the demanded premises. The officer’s return shows that he left the notice of the time and place of sale at the last and usual place of abode of the judgment debtor, and does not show that it was served upon the debtor in person, nor is any reason shown why it was not so served. The return does not state the public places, particularly specifying the same, at which notices of the sale were posted by the officer.
The tenant objects to the demandant’s right to recover only for the matters above stated as to the officer’s return; and it is agreed that, if the court shall be of opinion that the demandant’s title is invalid by reason of the matters herein set forth as to said return, judgment shall be entered fa" the tenant; otherwise, for the demandant.
H. E. Swasey, (C. R. Brainard with him,) for the demandant.
E. M. Bigelow, for the tenant.
Colt, J. The return of the officer shows that legal notice of the sale of the tenant’s equity of redemption in the demanded premises was not given to him, as required by the Gen. Sts. c. 103, § 41. The case is governed by’ the decision in Parker v. Abbott, supra.
Judgment for the tenant.
The St. of 1881, c. 207, § 1, which took effect April 20, 1881, is as follows: “ Any notice required to be given to the debtor, in the service of an execution by levy upon real estate, may be served upon him personally, or may be left at his last and usual place of abode. When the debtor does not reside in the precinct of the officer serving the execution and is not found therein by the officer serving the execution, such officer shall, in addition to the service required by law, send a copy of any notice which would be served upon him, if within said precinct, by mail post-paid, addressed to him at his place of residence, as described in the execution.”