97 Mass. 489 | Mass. | 1867
A bill of sale of personal property intended by both parties as a security for money lent, and an instrument of defeasance executed as a part of the same transaction, by the terms of which on payment of the note at maturity the bill of sale is to be given up and surrendered, must be construed together. And the two instruments constitute a mortgage, by all the authorities in this Commonwealth. Potter v. Boston Loco
Registration is not necessary to the validity of a mortgage of a ship or vessel, nor of goods at sea or abroad, if the mortgagee takes possession of them as soon as may be after their arrival in this state. Gen. Sts. c. 151, § 2.
The principal question in the present case is whether the mortgage has been duly foreclosed. At common law a mortgage, not a pledge, of personal property seems to have transferred the property absolutely to the mortgagee upon a breach of the condition. No process of foreclosure was necessary, and no right of redemption remained. Some authorities held that the mortgagor might maintain a bill in equity to redeem within a reasonable time after forfeiture ; but this rule was neither clearly settled nor universally admitted, and has never been recognized in this Commonwealth. See 2 Hilliard on Mortgages, c. 50, where the eases are collected. The first statute regulation of this subject is found in the Rev. Sts. c. 107, § 40, by which the mortgagor of personal property is allowed to redeem at any time within sixty days after condition broken. By the St, of 1843, c. 72, § 1, the right of the mortgagor is not to be forfeited until sixty days after the mortgagee has given written notice of his intention to foreclose said mortgage for a breach of the condition thereof, and caused a copy of such notice to be recorded in the town clerk’s office where the mortgage is recorded. The Gen. Sts. c. 151, §§ 4, 5, 6, 7, continue in effect the same provisions. Section 7 provides that the notice with an affidavit of service shall be recorded wherever the mortgage is recorded. Section 8 enacts that “if the money to be paid or other thing to be done is not paid or performed or tender thereof made within sixty days after such notice is so recorded, the right to redeem shall be foreclosed.”
What then is the mode of foreclosure, where the mortgage is not, and is not required to be, recorded in any town or city
It follows that the mortgage in the present case has been duly foreclosed, and this bill must be dismissed with costs.