Gould v. Newman
Massachusetts Supreme Judicial Court
This was a writ of entry, brought to foreclose a mortgage, given by the defendant to the plaintiff, pursuant to the statute of 1785, c. 22, $ 1. The defendant, after oyer, pleads in bar that, since the execution of the mortgage, and before any breach of the condition thereof, the plaintiff, by his deed duly executed, acknowledged, and recorded, assigned all his interest, &c., in the demanded premises, to one Thomas Pons, in fee simple; that the premises passed to the said…
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This was a writ of entry, brought to foreclose a mortgage, given by the defendant to the plaintiff, pursuant to the statute of 1785, c. 22, $ 1. The defendant, after oyer, pleads in bar that, since the execution of the mortgage, and before any breach of the condition thereof, the plaintiff, by his deed duly executed, acknowledged, and recorded, assigned all his interest, &c., in the demanded premises, to one Thomas Pons, in fee simple; that the premises passed to the said Pons by the said assignment; and that the plaintiff had not, at the time of commencing this action, nor at any time since…
1Opinion of the CourtParsons, C. J.
[After stating the pleadings.] Under the general issue, it is very clear that this conveyance by the plaintiff could not be given in evidence ; for it is consistent with every allegation in the count, and in fact admits the plaintiff’s seisin, and the dis seisin complained of. The question is, whether it may be well pleaded in bar.
If a mortgage was a chose in action, not assignable at law, but only in equity, the bar would be bad, because the legal estate still remained in the mortgagee. So, when a man, not seised [ * 241 ] of land, executes a deed of conveyance, he * may after • wards…
2Cited by19 opinions
- Robinson v. CampbellSupreme Court of the United States · 1818
- Lamson & Co. v. AbramsMassachusetts Supreme Judicial Court · 1940
- Kaufman v. Federal National BankMassachusetts Supreme Judicial Court · 1934
- Barbell v. BrittonMassachusetts Supreme Judicial Court · 1923
- Martin v. JacksonSupreme Court of Pennsylvania · 1856
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