Burridge v. Fogg
Massachusetts Supreme Judicial Court
This was a writ of entry on a mortgage, and was commenced on the 5th of November, 1847. The tenants pleaded the general issue. At the trial in the court of common pleas, before Byington, J., the demandants, to prove their case, produced and proved a mortgage to them from Daniel Leland, Jr., and James Luke, Jr., of the land described in their writ, and the notes secured by the mortgage, made by Leland and Luke to the demand-ants.
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This was a writ of entry on a mortgage, and was commenced on the 5th of November, 1847. The tenants pleaded the general issue. At the trial in the court of common pleas, before Byington, J., the demandants, to prove their case, produced and proved a mortgage to them from Daniel Leland, Jr., and James Luke, Jr., of the land described in their writ, and the notes secured by the mortgage, made by Leland and Luke to the demand-ants. The mortgage and notes bore date the 31st of August, 1846; and the mortgage was duly executed, delivered, acknowledged, and recorded. The demandants then rested their…
1Opinion of the CourtShaw, C. J.
This case we think must be governed by that of Ward v. Fuller, 15 Pick. 185. The execution, delivery and acknowledgment of a deed, are by statute made to have the force and effect of livery of seizin, and therefore do constitute some evidence of seizin in the grantee, and therefore in the absence of all proof, on the part of the tenant, may avail. The plea of mil disseizin so far admits the tenant’s claim to have the freehold, that it is not incumbent on the demandant, to prove the tenant’s possession. Higbee v. Rice, 5 Mass. 352 ; Washington Bank v. Brown, 2 Met. 293.
Exceptions overruled.
2Cases cited1 opinion
- Vertrees v. SheanCourt of Appeals of Kentucky · 1859
3Cited by1 opinion
- Rue v. RueSupreme Court of New Jersey · 1848