¶1This case has been argued only by the counsel for the petitioners, and we infer that no person has appeared to answer the petition, or to contest the right of the petitioners to the remedy they seek. So far as any objections to the petition have been suggested by counsel or occur to us, we think that they are not valid. We construe the words “when the record title of real estate is encumbered by an undischarged mortgage,” etc., at the beginning of St. 1882, c. 237, as including all cases where the mortgage is undischarged on the record of the proper registry of deeds, whether there is evidence sufficient to satisfy the court *409that the mortgage has been in fact discharged or not. We think that one purpose of the statute was, by entering a decree and recording it in the proper registry of deeds, to perfect the record title by removing what, according to the record, might be construed as a cloud upon the title. The petitioners are the owners of the equity of redemption, if the mortgage was never in fact assigned to Bacon ; if it was so assigned, then they are the owners of the fee. There is no direct evidence that the mortgage was assigned to Bacon. This is not a case in which the only title of the petitioners is under the mortgage against the enforcement of which they ask for a decree. We are of opinion that the petitioners are entitled to the decree they ask if sufficient notice has been given. The effect of such a decree upon the rights of persons to whom no notice had been given we cannot now determine. Decree accordingly.
160 Mass. 407
Tarbell
Massachusetts Supreme Judicial Court
Decided January 6, 1894
Massachusetts Supreme Judicial Court · decided 1894-01-06
<p>Petition to bar Action on undischarged Mortgage — Statute — Decree.</p> <p>The provisions of St. 1882, e. 237, that “ when the record title of real estate is encumbered by an undischarged mortgage,” the mortgagor and those having his estate in the premises having been in uninterrupted possession for the time required, may bring a petition for a decree, to the end that no action shall be brought to enforce title under the mortgage, include a case where the mortgage is undischarged on the record of the proper registry of deeds, whether there is evidence sufficient to satisfy the court that the mortgage has been in fact discharged or not.</p> <p>If no assignment of a recorded mortgage upon land held by A., who is dead, appears of record, and B., to whom the equity of redemption in the land had been conveyed, assuming to act as the assignee of the mortgage, forecloses the same, and afterwards conveys the land by warranty deed to C., who, after the expiration of twenty years from the time limited in the mortgage for the payment of the debt, during which he has remained in undisputed possession of the premises, and no act in recognition of the existence of the mortgage has been done, brings a petition, under St. 1882, c. 237, to bar an action upon the mortgage, he is entitled to a decree, if sufficient notice has been given.</p>
Cited by 2 later decisions — most recently February 1910
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1894-01-06
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