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Willington v. Gale

Jeduthun Willington versus Alpheus Gale

Willington v. Gale, 7 Mass. 138 (1810)
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Court
Massachusetts Supreme Judicial Court · State Highest Courts
Decided
October 15, 1810
Judges
Parsons
Citations
7 Mass. 138
Cited by 28
Headnotes
The purchaser of an equity of redemption, sold by the sheriff on execution, pursuant to the statute of 1798, c. 76, obtains by such sale a legal seisin of the land, and may maintain a real action against any stranger, unless such stranger had, in fact, disseised the mortgagor before the sale of the equity.
Summary
This was an action of entry sur disseisin, in which the demand-ant counted upon his own seisin, and on a disseisin by the tenant. Trial was had upon the general issue, and a verdict being found for the tenant, the demandant moved for a new trial for the misdirection of the judge. From the judge’s report it appears, that the tenements demanded were under mortgage; but neither the mortgagee, nor any under him, had entered for condition broken. The equity of redemption was regularly seized upon execution against the mortgagor, and legally sold by the sheriff to the demandant in fee, who received a regular deed of conveyance from the sheriff, duly executed, acknowledged, and recorded. This was the evidence of the demandant’s title. The tenant entered, not claiming under the mortgagee, nor as a disseisor of the mortgagor; and the judge’s opinion at the trial was, that the demandant must prove an actual entry after his conveyance, in order to maintain his * action. [ * 139 J Such evidence not being produced, the jury returned a verdict for the tenant. And this opinion of the judge was the ground of the motion for a new trial, which was briefly argued at the last October term in this county, by Ward and Fay in support of the motion, and Bigelow in favor of the verdict, and the action being continued nisi from the present term, the opinion of the Court was delivered at the following November term in Suffolk, by

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Opinion of the Court — Parsons

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Parsons, C. J.

The mortgagor, after his mortgage, still continues the owner of the land, and seised of it against all persons but the mortgagee, or those who claim under him ; and he has therefore a right to convey the estate mortgaged, defeasible only by the mortgagee, or some person having his right; and if he conveys, thus having a right to convey, by deed executed, acknowledged, and registered, the purchaser shall be deemed actually seised, without entry or livery of seisin.

The statute of 1798, c. 77, which makes rights in equity, of redeeming real estate mortgaged, liable to be seized and sold on execution, provides that the sheriff’s deed shall convey the debtor’s right in equity to the purchaser, his heirs and assigns, in the same manner a s the debtor had executed the deed.

*118 The purchaser thus having a legal right to the equity of redemption, has also a legal seisin of the land, when neither the mortgagee nor his assigns have entered, subject, however, to their claim; and may maintain a real action against any stranger, unless such stranger had, in fact, disseised the mortgagor before the sale of the equity, But the tenant in this case does not claim as a disseisor of the mortgagor ; against him, therefore, an actual entry, in our opinion, was not necessary; and in this opinion the judge, who tried the cause, upon further consideration concurs. The verdict must be set aside, and a new trial granted, (a)

[Tuttle vs. Brown, 14 Pick. 514 . — Ed.]

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 28 cases

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1812–1813: 11818–1819: 21822–1823: 11824–1825: 11828–1829: 11830–1831: 31832–1833: 11840–1841: 31846–1847: 11848–1849: 11850–1851: 11858–1859: 11860–1861: 11864–1865: 11870–1871: 11880–1881: 21886–1887: 11892–1893: 11910–1911: 11912–1913: 11922–1923: 11942–1943: 118122026peak 1830 · 3

Relies on it most ⓘ

  1. Poignard v. Smith23 Mass. 172 (1828)
  2. Robinson v. Campbell16 U.S. (3 Wheat.) 212 (1818)
  3. Dolliver v. St. Joseph Fire & Marine Insurance128 Mass. 315 (1880)
  4. Southerin v. Mendum5 N.H. 420 (1831)
  5. Stevens v. Turlington119 S.E. 210 (N.C. 1923)
  6. McMahon v. Russell17 Fla. 698 (1880)

Most recent

  1. Cleve v. Adams22 S.E.2d 567 (N.C. 1942)
  2. Stevens v. Turlington119 S.E. 210 (N.C. 1923)
  3. Hawes v. Nason88 A. 538 (Me. 1913)
  4. Van Dyke v. Grand Trunk Railway Co.78 A. 958 (Vt. 1911)
  5. Collamore v. Collamore32 N.E. 1034 (Mass. 1893)
  6. Cowles v. Dickinson5 N.E. 302 (Mass. 1886)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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