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21 Mass. 505

Barker v. Parker

Massachusetts Supreme Judicial Court

Decided April 2, 1827

Massachusetts Supreme Judicial Court · decided 1827-04-02

<p>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 his right, title and interest to Barker the mortgager. The tenants claimed by virtue of a conveyance to them in January 1808, of all the right, title and interest which Mackay acquired by his purchase of the equity of redemption. In that year, and after the conveyance from Jeffries to tne mortgager, the tenants entered on the premises, and have continued in possession ever since. According as the opinion of the Court should be upon the foregoing facts, the demandants were to be nonsuited or the tenants defaulted.</p>

Decided 1827-04-02

Wilde J.

¶1delivered 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

¶2The 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 question, we are of opinion that it is. The sale by the sheriff conveyed all the mortgager’s estate in the premises. He had, it is true, a right to redeem from the purchaser, but he could not be compelled to redeem by his creditors ; nor was his right attachable, as was decided in the case of Kelly et ux. v. Beers, 12 Mass. R. 387.2 All the right the mortgager had, after the sale of the equity, was the mere right of preemption ; and this right was not inconsistent with his holding as assignee of the mortgage. As the tenants have acquired the estate of the mortgager, they cannot object to his purchasing the estate of the mortgagee. Their rights can by no possibility be impaired by it. They still have the right to redeem, unless it has been lost by their own loches.

¶3For these reasons we are of opinion that, upon the facts agreed, the demandants are entitled to judgment.

¶4 Tenants defaulted.

¶5 See Gibson v. Crehore, 3 Pick. (2d ed.) 482, n. 1.

¶6 But see Reed v. Bigelow, 5 Pick. 281; Bigelow v. Willson, 1 Pick. 485 Clark v. Austin, 2 Pick 528.
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