Eaton v. Whiting
Massachusetts Supreme Judicial Court
Assumpsit. The defendant was called in the writ, of Louisville in the State of Kentucky, and there was no service except by the attachment of two parcels of land. The defendant, upon oyer of the writ, declaration and return of the officer, pleaded in abatement of the writ, that he had no right, title, interest or property in the land, that could be attached on the writ ; and issue was taken on that fact.
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Assumpsit. The defendant was called in the writ, of Louisville in the State of Kentucky, and there was no service except by the attachment of two parcels of land. The defendant, upon oyer of the writ, declaration and return of the officer, pleaded in abatement of the writ, that he had no right, title, interest or property in the land, that could be attached on the writ ; and issue was taken on that fact. The plaintiff, to maintain the issue on his part, produced a deed indented between John Peck and Whiting the defendant, dated the 31st of March, 1810, and recorded on the 11th of April…
1Opinion of the Court
Parker C. J.
delivered the opinion of the Court. The opinion expressed in the case of Blanchard v. Colburn & ux. 16 Mass. R. 345, that the interest of a mortgagee, in real estate mortgaged to him for security of a debt, or the performance of a condition, is not liable to be levied upon for the debts of the mortgagee, and so of course not liable to attachment on mesne process, we see no cause to change. It is in fact but a chose in action, at least until entry to foreclose, and although the legal effect of the mortgage is to give an immediate right of entry or action to the mortgagee, yet the…
2Cases cited2 opinions
- Blanchard v. ColburnMassachusetts Supreme Judicial Court · 1820
- President of Portland Bank v. HallMassachusetts Supreme Judicial Court · 1816