Gooding v. Shea
Massachusetts Supreme Judicial Court
Tort. The first count in the declaration alleged that the defendant forcibly entered the plaintiff’s close, being the dwelling-house numbered 8 on Brookline Street in Boston, tore out, took and carried away certain fixtures in said dwelling- house, and converted them to his own use.
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Tort. The first count in the declaration alleged that the defendant forcibly entered the plaintiff’s close, being the dwelling-house numbered 8 on Brookline Street in Boston, tore out, took and carried away certain fixtures in said dwelling- house, and converted them to his own use. The second count alleged that Hiram Curtis was the owner of said dwelling-house, “ subject to two mortgages, one of $5000 and the other of $1000, and interest on the same, and the said Curtis conveyed the same to the plaintiff, subject to said mortgages, to secure the payment of $3000 and interest, before that…
1Opinion of the CourtWells, J.
There are two counts in the declaration relating to each lot of land and dwelling-house. The plaintiff is third mortgagee of each parcel, by separate mortgages, containing a clause against taking possession until breach. There had been no breach at the time of the alleged tort.
The first count, relating to each parcel, is in the nature of trespass quare clausum fregit, and cannot- be maintained, because of the want of possession or right of possession at the time of the alleged trespass. Page v. Robinson, 10 Cush. 99. Woodman v. Francis, 14 Allen, 198.
The second count in each case sets forth…
2Cases cited1 opinion
- Cypress Pond Draining Co. v. HooperCourt of Appeals of Kentucky · 1859
3Cited by37 opinions
- Waterman v. MacKenzieSupreme Court of the United States · 1891
- Ellis v. Boston, Hartford & Erie RailroadMassachusetts Supreme Judicial Court · 1871
- Paine v. WoodsMassachusetts Supreme Judicial Court · 1871
- Delano v. SmithMassachusetts Supreme Judicial Court · 1910
- Laurin v. DeCarolis Construction Co., Inc.Massachusetts Supreme Judicial Court · 1977
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