Capen v. Doty
Massachusetts Supreme Judicial Court
Writ of entry. At the trial in the superior court, before Rockwell, J., it appeared that on the 26th of May 1864 the right in equity of the defendant Harrison Doty to redeem the premises from a mortgage was taken on an execution against him, in favor of the demandant, and due notice of the sale thereof was given by the officer; and on the 22d of the following July the debt secured by the mortgage was paid and the mortgage discharged by an instrument written on the back…
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Writ of entry. At the trial in the superior court, before Rockwell, J., it appeared that on the 26th of May 1864 the right in equity of the defendant Harrison Doty to redeem the premises from a mortgage was taken on an execution against him, in favor of the demandant, and due notice of the sale thereof was given by the officer; and on the 22d of the following July the debt secured by the mortgage was paid and the mortgage discharged by an instrument written on the back thereof, which was acknowledged and recorded on the same day. The sale upon the execution was made upon the 23d of the same…
1Opinion of the CourtGray, J.
The single question in this case is whether, after mortgaged land has been taken on execution and notice of a sale given by the sheriff according to law, payment and discharge of the mortgage by the debtor will defeat a subsequent sale by the sheriff, pursuant to the notice. The statutes of the Commonwealth and the decisions of this court clearly indicate how this question must be answered.
An execution issued on a judgment in an ordinary civil action can be levied on land which is not subject to a mortgage by ex* tent only, and on mortgaged land either by extent or by sale. Most of the…
2Cases cited4 opinions
- Heywood v. HildrethMassachusetts Supreme Judicial Court · 1812
- Maraman v. TrunnellCourt of Appeals of Kentucky · 1860
- Finnell v. CoxCourt of Appeals of Kentucky · 1860
- Forster v. MellenMassachusetts Supreme Judicial Court · 1813