Tarbell

160 Mass. 407 | Mass. | 1894

Field, C. J.

This case has been argued only by the counsel for the petitioners, and we infer that no person has appeared to answer the petition, or to contest the right of the petitioners to the remedy they seek. So far as any objections to the petition have been suggested by counsel or occur to us, we think that they are not valid. We construe the words “when the record title of real estate is encumbered by an undischarged mortgage,” etc., at the beginning of St. 1882, c. 237, as including all cases where the mortgage is undischarged on the record of the proper registry of deeds, whether there is evidence sufficient to satisfy the court that the mortgage has been in fact discharged or not. We think that one purpose of the statute was, by entering a decree and recording it in the proper registry of deeds, to perfect the record title by removing what, according to the record, might be construed as a cloud upon the title. The petitioners are the owners of the equity of redemption, if the mortgage was never in fact assigned to Bacon ; if it was so assigned, then they are the owners of the fee. There is no direct evidence that the mortgage was assigned to Bacon. This is not a case in which the only title of the petitioners is under the mortgage against the enforcement of which they ask for a decree. We are of opinion that the petitioners are entitled to the decree they ask if sufficient notice has been given. The effect of such a decree upon the rights of persons to whom no notice had been given we cannot now determine. Decree accordingly.