14 Mass. 409 | Mass. | 1817
delivered the opinion of the Court. In the writ of entry at common law, if the tenant is ousted, pending the suit, by a stranger having a better title, this will abate the writ.
It is also very questionable whether this matter, if duly pleaded would have availed the tenant in this action; which is founded
Now, when the action assumes this shape, the object and effect of it is to ascertain what sum is due on the mortgage, and to foreclose and bar the defendant’s right of redemption, unless he pays that sum within the time prescribed. So far as regards that question, it seems unimportant to inquire what estate the defendant has in the premises. At least, if he has the right of redemption, which is sought to be foreclosed, he must be a proper party to the suit.
In the case at bar, it is obvious that Spencer, after the recovery against him by William Walcutt, still had the right to redeem the premises, as against both of the * mortgagees. It has been decided in this Court that, where a reversion, after an estate for life, is mortgaged, an action like the present may be maintained against the mortgagor, although the tenant for life is still living, and of course the defendant in the action is not tenant of the land.
But, without relying on this point, the first is conclusive. This matter could not be given in evidence under the general issue; and, according to the agreement of the parties, the tenant must be called.
Tenant defaulted
Com. Dig., tit. Abatement H, 56.
Ibid. H 54.
13 Mass. Rep. 429, Penniman vs. Hollis.