Barker v. Flood
Massachusetts Supreme Judicial Court
Writ of entry to recover a parcel of land in Lowell. At the trial in the superior court, before Rockwell, J., it appeared that Patrick Flood, being seised in fee of the demanded premises, mortgaged them in 1854 to Joshua Bennett, and in 1859 died intestate; that his sons, John Flood, (the tenant,) and Peter Flood, were his heirs; and that Peter Flood paid Bennett the amount due on the mortgage, took an assignment thereof to himself in 1860, made an entry to foreclose in…
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Writ of entry to recover a parcel of land in Lowell. At the trial in the superior court, before Rockwell, J., it appeared that Patrick Flood, being seised in fee of the demanded premises, mortgaged them in 1854 to Joshua Bennett, and in 1859 died intestate; that his sons, John Flood, (the tenant,) and Peter Flood, were his heirs; and that Peter Flood paid Bennett the amount due on the mortgage, took an assignment thereof to himself in 1860, made an entry to foreclose in 1861, a certificate of which was duly recorded, and in 1868 conveyed the premises to the demandant by a warranty deed. The…
1Opinion of the CourtChapman, C. J.
The debt which the mortgage was given to secure was due from Patrick Flood, the mortgagor, and not from his heirs. By his death, his heirs became tenants in common, not of the legal estate, but of the equity of redemption. Neither of them was under any personal obligation to pay the debt; but each of them had an interest in acquiring the legal title, in order to prevent his interest in the equity from being lost by foreclosure of the mortgage. If Peter purchased the mortgage and took an assignment of it to himself, it would be tor his interest that it should remain in force, as a security for…
2Cited by7 opinions
- Factors' & Traders' Insurance v. MurphySupreme Court of the United States · 1884
- McClaskey v. O'BrienWest Virginia Supreme Court · 1879
- Bell v. TennyOhio Supreme Court · 1876
- Scanlon v. ParishSupreme Court of Connecticut · 1912
- Knesek v. MuznySupreme Court of Oklahoma · 1942
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