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128 Mass. 369

Hackett v. Buck

Massachusetts Supreme Judicial Court

Decided February 13, 1880

Massachusetts Supreme Judicial Court · decided 1880-02-13

<p>Although the St. of 1874, c. 188, authorizes an estate not subject to a mortgage to be levied upon by sale instead of by extent, it does not authorize an estate, which is subject to a mortgage when attached, and which, at the time of the levy, is free from mortgage, to be levied upon and sold as an equity of re demption.</p>

Cited by 5 later decisions — most recently December 1902

4 state decisions

Relies on Gardner v. Barnes

Good law ✅— No negative treatment on recordhow we know

Decided 1880-02-13

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Gray, C. J.

¶1The St. of 1874, c. 188, has changed the law so far as to authorize an estate not subject to mortgage to be levied upon by sale instead of by extent, but not so far as to authorize the officer to levy upon, advertise and sell such an estate as an equity of redemption, or to sell less than the entire estate which is at the time of the beginning of the levy bound *370by the lien of the attachment. In this case, by the discharge oí the mortgage, after the attachment and before the levy, the equity of redemption had ceased to exist; the advertisement that the right to be sold on execution was an equity of redemption only, tended to limit to the prejudice of the debtor the sums bid at the sale; and the deed of the officer, being in terms limited to the right in equity, which had ceased to exist and which could not be revived by any act of his, was a nullity, and passed no title to the purchaser. Freeman v. M’Gaw, 15 Pick. 82. McGregor v. Williams, 10 Cush. 526. Perry v. Hayward, 12 Cush. 344. Gardner v. Barnes, 106 Mass. 505.

¶2 Judgment affirmed.

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