Trustees of Smith Charities v. Connolly, 157 Mass. 272

157 Mass. 272 | Mass. | 1892

Morton, J.

1. It appears from the exceptions that the president of the plaintiff corporation directed this suit to be brought, and that he was the general manager and chief executive officer of the corporation, the business of which was principally to keep the fund invested in mortgages and other securities. It is clear that the tenant’s request for a ruling that the president was not authorized to bring the suit, and that the action could not therefore be maintained, was rightly denied. Bristol County Savings Bank v. Keavy, 128 Mass. 298.

2. There is nothing in the statutes relating to the foreclosure of mortgages which prevents the mortgagee from pursuing concurrently or successively all his remedies, and it is plain that he may do so. Pub. Sts. c. 181. Gilman v. Illinois Mississippi Telegraph Co. 91 U. S. 603. A mortgagee who has entered to foreclose may also sell under the power. Montague v. Dawes, 12 Allen, 397. One who has brought suit on the note may also enter to foreclose. Burtis v. Bradford, 122 Mass. 129, and cases cited. See also Heburn v. Warner, 112 Mass. 271. There is no more difficulty in holding that one who has entered to foreclose, and duly filed a certificate thereof, may also bring suit to foreclose and have a conditional judgment. In an ordinary writ of entry the tenant may set up as a defence that the demandant has actual and peaceable possession. But that does not apply in proceedings to foreclose a mortgage. Merriam v. Merriam, 6 Cush. 91. Of course the mortgagee can have but one satisfaction of his debt.

3. It was competent for the court to find as a fact that the attesting witness lived out of the State, and that being so, the ruling that the execution of the deed might be proved directly by secondary evidence was according to decisions of this court. Valentine v. Piper, 22 Pick. 85, 90. Gelott v. Goodspeed, 8 Cush. 411. Clark v. Houghton, 12 Gray, 38.

4. Even if the boundaries on the railroad were erroneous, enough remained by which to locate the land, and the identity of the tract demanded with that described in the mortgage was for the court.

5. The demandant was not obliged to give the tenant notice to quit before commencing this action. Smith v. Johns, 3 Gray, 517, 519.

6. The court found that the tenant had disseised the demandant, and there is nothing to show that the finding was erroneous.

• The motion for double costs is denied.

Exceptions overruled.