Short v. Caldwell, 155 Mass. 57

Short v. Caldwell

155 Mass. 57 | Mass. | 1891

Allen, J.

The respondents contend that there is no jurisdiction to entertain this petition, because they are non-residents. If that were so, the non-residence of any one of the heirs of the mortgagee would defeat the operation of the statute. The respondents contend that the same rule is applicable to the statute under which this petition is brought (St. 1882, c. 237) as to the Pub. Sts. c. 176, authorizing the court to compel a sup*59posed claimant of land to bring an action to try his title; under which the court has declined to take jurisdiction against nonresidents, unless personal service has been made within the Commonwealth. Macomber v. Jaffray, 4 Gray, 82. Leary v. Duff, 137 Mass. 147, 150. Thompson v. Cowell, 148 Mass. 552. There is, however, an important difference between the two statutes. The Pub. Sts. c. 176, authorize a decree in personam, while the St. of 1882, c. 237, authorizes a decree which simply operates on the estate. The respondents are not called upon to do anything under it. The estate is here, and the court may proceed to enter a decree which affects it, even though persons interested therein may be non-residents. Spurr v. Scoville, 3 Cush. 578. Felch v. Hooper, 119 Mass. 52, 57.

The respondents further contend that the St. of 1882, c. 237, does not apply to a mortgage which is created by a deed absolute in form, and a separate instrument of defeasance. We see no good reason in support of this contention. As between the parties themselves, the relation in such case is the same as if the mortgage had been in the ordinary form. Tilden v. Greenwood, 149 Mass. 567, 569, and cases there cited. And although the omission to record the bond might endanger the mortgagor’s title, by enabling the mortgagee to give a good title to a third person, such record was unnecessary as between themselves. Bryan v. Traders' Ins. Co. 145 Mass. 389, 390.

It being unnecessary to record the bond, the argument as to the need of an acknowledgment of it fails, and we need not consider whether otherwise it would have weight.

The respondents also contend that recording the bond in 1860 amounted to an admission that the mortgage debt had not then been paid, and is sufficient, in the absence of positive evidence of the payment afterwards, to prevent the entry of a decree in favor of the petitioners. We are entirely unable to see how any such admission is to be inferred from the act of recording the bond. Naturally this would seem to be an act in support of the mortgagor’s title, and not in disparagement of it. But if in 1860 the mortgagor admitted the mortgage debt to be then unpaid, we do not see how it goes to show any recognition of the existence of the mortgage as valid within twenty years prior to the filing of this petition, which was in 1890.

Decree for the petitioners.