Marcy v. Darling

Decided June 15, 1829

Massachusetts Supreme Judicial Court · decided 1829-06-15

This was a bill to redeem an undivided moiety of a bathing-house situated on the northeasterly side of canal bridge. The house is erected on piers driven into the mud below low-water mark in Charles river. The bill alleges that the moiety in question was mortgaged by one Farnum to the defendant, and that the equity of redemption was taken and sold on execution and purchased by the plaintiff.

Decided 1829-06-15

¶1The Court afterward expressed their opinion, that as it does not appear by the bill that the owner of the bathing-house had any right or interest in the soil or flats into which the piles were driven, on which the building stands, but that the same belonged to the public, the house was personal property and not real estate ; so that the sale of the equity of redemption was wholly void.1

¶2Bill dismissed.

¶3 See Holbrook v. Baker, 5 Greenleaf, 309; Story’s Comm, on Bailments, (2d edit.) 238 and notes; Wheeler v. M'Farland, 10 Wendell, 318; Ferguson v. Lee, 9 Wendell, 258; Pomeroy v. Smith, 17 Pick. 85. See the provisions for attaching mortgaged personal estate, in Revised Stat. c 90, § 78, 79