Davis v. Bean
Massachusetts Supreme Judicial Court
Writ of entry to foreclose a mortgage. Writ dated July 10,1872. Upon a motion in the Superior Court, before Allen, J., to award a conditional judgment, it appeared that the mortgage debt "was a promissory note given by the defendant to the plaintiff for part payment of the purchase money of the mortgaged premises, which were conveyed by the plaintiff to the defendant at the same time the mortgage was given.
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Writ of entry to foreclose a mortgage. Writ dated July 10,1872. Upon a motion in the Superior Court, before Allen, J., to award a conditional judgment, it appeared that the mortgage debt "was a promissory note given by the defendant to the plaintiff for part payment of the purchase money of the mortgaged premises, which were conveyed by the plaintiff to the defendant at the same time the mortgage was given. The defendant offered evidence to prove that on March 8, 1873, he paid $64.90, the amount of taxes assessed on the premises for the year 1872; that the deed from the plaintiff to him was…
1Opinion of the CourtWells, J.
Upon the hearing for conditional judgment, the court determines “ how much is due to the plaintiff on the mortgage.” Gen. Sts. c. 140, § 5.
In Vinton v. King, 4 Allen, 562, it was held that “the defendant may show the same matters in defence (the statute of limitations excepted, 19 Pick. 535) which he might show in defence of an action on the note.” The exception should also include matters of set-off. Bird v. Gill, 12 Gray, 60. Holbrook v. Bliss, 9 Allen, 69, 77.
In Wearse v. Peirce, 24 Pick. 141, the defence of want of consideration for the notes secured by the mortgage was allowed to prevail…
2Cases cited1 opinion
- Freeland v. FreelandMassachusetts Supreme Judicial Court · 1869
3Cited by3 opinions
- Skilton v. RobertsMassachusetts Supreme Judicial Court · 1880
- Wilson v. Butler CountyNebraska Supreme Court · 1889
- Macomb v. PrentisMichigan Supreme Court · 1889