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21 Mass. 349

Rice v. Rice

Massachusetts Supreme Judicial Court

Decided November 2, 1826

Massachusetts Supreme Judicial Court · decided 1826-11-02

<p>On the 19th of October, 1807, Nathan Dewing, being indebted to Abel Perry senior in the sum of 400 dollars, conveyed to him the land described in the petition, and on the same day Perry executed and delivered to Dewing a bond, conditioned to reconvey the land in two years, provided Dewing should in that time pay him that sum with interest. These were the only papers that were executed between them. On the 30th of December, 1806, Perry made his will, and appointed his son Abel Perry executor, and among other things, bequeathed to him 11 all the obligations for money that might be due to him, the testator, at the time of his decease.” The testator died in April 1808, and in June following the will was proved and allowed. At April term 1811 of the Court of Common Pleas, the executor brought an action of ejectment to recover possession of the land for the non-payment of the 400 dollars and interest; and at the next September term he recovered judgment for possession, unless the sum of 512 dollars should be paid in two months and interest thereon; and on the 10th of December next ensuing a writ of possession was issued, and on the 28th of the same December the executor, having previously received full satisfaction of the same sum, interest, and cost of suit, by his deed of release and quitclaim reconveyed the land to Dewing. The respondent held under Dewing. The petitioners were heirs at law of Perry senior, and the land was not devised by him, otherwise than by the devise to his son before recited.</p>

Decided 1826-11-02

¶1An absolute deed of land and a bond made at the same time to reconvey upon the payment of a sum of money, though unaccompanied by any collateral personal security for such payment, constitute a mortgage; and the mortgagee’s right under the same will pass by a devise of ££ all the obligations for money due to him.’*

¶2Petition for partition. The case came before the Court upon a statement of facts.

¶3If the Court should be of opinion, that the land descended to the heirs at law of Perry senior, and that the executor had no right to receive the sum last mentioned, and to execute the release, partition was to be made according to the prayer of the petition ; but otherwise the petitioners were to take nothing by their petition, and the respondent was to recover costs.

¶4cited St. 1788, c. 51, § 4. Parker C. J. delivered the opinion of the Court. The question in this case relates to the title to the land described *366m the petition ; and we think that this is very clearly ik. ihe' respondent, whatever may be the construction of the will in regard to the rights of the executor and the heirs, as to the proceeds of the estate. It is manifest that the deed to Perry senior and the deed of defeasance made by him, constituted a mortgage. There had been no foreclosure, nor even an entry by the mortgagee for condition broken. It is not the less a mortgage, because there was no collateral personal security for the debt taken at the time. The grantee could no otherwise have acquired an indefeasible estate, than by entry to foreclose, or judgment as in cases of mortgage ; and his estate was liable to be defeated at any time, by the payment of the debt and interest within three years after entry for condition broken, or the execution of a writ of habere facias, upon the conditional judgment prescribed by statute in cases of mortgage. This was in every sense therefore a security for money, at the time of the decease of Perry senior, and passed to his son by the bequest of all obligations for money.

¶5There is nothing in that case, therefore, to be overruled by our decision in this. Here the contract was unquestionably a mortgage for security,1 and therefore was an obligation for money, within the meaning of the testator as expressed in his will. It passed therefore to his son, the executor, and the respondent holding title under him cannot be disturbed.

¶6Petitioners take nothing, fyc. Costs for respondent.

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