Barker v. Parker
Massachusetts Supreme Judicial Court
Writ of entry. Upon a case stated it appeared, that the demandants were the heirs at law of-Moses Barker, who in 1793, being then seised in fee of the demanded premises, conveyed the same in fee and in mortgage to one Gerry. In 1803, Gerry assigned the mortgage to one Jeffries. In May 1806, Barker’s right in equity was sold on execution to one Mackay.
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Writ of entry. Upon a case stated it appeared, that the demandants were the heirs at law of-Moses Barker, who in 1793, being then seised in fee of the demanded premises, conveyed the same in fee and in mortgage to one Gerry. In 1803, Gerry assigned the mortgage to one Jeffries. In May 1806, Barker’s right in equity was sold on execution to one Mackay. In July 1806, Jeffries, having obtained a judgment and writ ®f possession against Barker the mortgager, entered by virtue of the same and continued seised of the premises until March 1808, when by his deed of that date he sold and released all…
1Opinion of the Court
Wilde J.
delivered the opinion of the Court. The tenants’ counsel contend, that by virtue of the conveyance from Jeffries to Barker the mortgager, the mortgage was by law extinguished. Such undoubtedly would have been the legal operation of the conveyance, if Barker had at the time been seised of the equity; but if he had parted with his right "n equity, the conveyance operated as an assignment of the mortgage.1
The only question, therefore, to be considered is, whether the sale of the equity by the sheriff is equivalent to an absolute sale by the mortgager; and so far as relates to the point m…
2Cases cited1 opinion
- Kelly v. BeersMassachusetts Supreme Judicial Court · 1815
3Cited by1 opinion
- Seward v. New York Life InsuranceSupreme Court of Virginia · 1930