Legal Opinion

Walcutt v. Spencer

Massachusetts Supreme Judicial Court

Decided October 15, 1817PublishedCited by 8 opinions

This was a writ of entry, in which the demandant counts upon a mortgage. The action was submitted to the determination of the Court upon the following case agreed : The demandant, in the year 1806, mortgaged the demanded premises to one William, Walcutt, to secure the performance of the condition of a bond executed by the demandant, and providing for the maintenance of the said William and his wife.

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This was a writ of entry, in which the demandant counts upon a mortgage. The action was submitted to the determination of the Court upon the following case agreed : The demandant, in the year 1806, mortgaged the demanded premises to one William, Walcutt, to secure the performance of the condition of a bond executed by the demandant, and providing for the maintenance of the said William and his wife. Afterwards the demandant conveyed the premises to one John Belloivs, subject to said mortgage, and took from the said Bellows the mortgage, upon which the present action is brought, as collateral…

1Opinion of the CourtJackson, J.

In the writ of entry at common law, if the tenant is ousted, pending the suit, by a stranger having a better title, this will abate the writ. (1) So if the land is recovered against him by a stranger, unless the recovery is by collusion. (2) But in both cases the fact must be specially pleaded, as having occurred pending the writ, or after the last continuance. It resembles the common plea of non-tenure, and cannot be given in evidence under * the general issue. In our practice, non-tenure may perhaps be pleaded in bar; but still it must be specially pleaded, if the party would take advantage…

2Cases cited1 opinion

  1. Penniman v. HollisMassachusetts Supreme Judicial Court · 1816

3Cited by8 opinions

  1. Fletcher v. CaryMassachusetts Supreme Judicial Court · 1870
  2. Doe ex dem. Kennedy v. HolmanSupreme Court of Alabama · 1851
  3. Palmer v. FowleyMassachusetts Supreme Judicial Court · 1856
  4. Dodge v. ClarkSupreme Court of New Hampshire · 1859
  5. Doten v. HairMassachusetts Supreme Judicial Court · 1860

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