Lincoln v. Emerson
Massachusetts Supreme Judicial Court
Tort for breaking and entering the plaintiff’s close in Mill-bury. At the trial in the superior court, before Brigham, C. J., it appeared that the defendant was seised of the land in question, and mortgaged it on August 30, 1852, to Albert Benchley; and that on the same day he made a second mortgage thereof to Jonas Brown, by a deed in which he covenanted that the land was free from all incumbrances except the mortgage to Benchley, and also covenanted that he would warrant…
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Tort for breaking and entering the plaintiff’s close in Mill-bury. At the trial in the superior court, before Brigham, C. J., it appeared that the defendant was seised of the land in question, and mortgaged it on August 30, 1852, to Albert Benchley; and that on the same day he made a second mortgage thereof to Jonas Brown, by a deed in which he covenanted that the land was free from all incumbrances except the mortgage to Benchley, and also covenanted that he would warrant and defend the premises against the lawful claims and demands of all persons. On May 2,1863, Brown entered to foreclose,…
1Opinion of the CourtChapman, C. J.
When Brown entered upon the premises for foreclosure, May 2,1863, his right was subject to the prior right of Benchley under his prior mortgage. As against Benchley he hd a mere equity of redemption. Two days later he sold to McIntyre, subject to the same right. When Benchley took possession under the first mortgage, April '26, 1864, he ousted McIntyre of his possession, and by his conveyance the next day to George W. Emerson, all his title and right of possession passed. The defendant might occupy under him so long as he lived. But by the death of George W. Emerson on August 27,1864,…
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