Gerrish v. Mason

Decided October 15, 1855

Massachusetts Supreme Judicial Court · decided 1855-10-15

Action on the Rev. Sts. c. 104. The parties submitted the case to the decision of the court upon the following facts : The plaintiff claimed title under a mortgage from a married woman, who held the land under a warranty deed, in common form, whose husband did not join in the mortgage or make any separate conveyance of his interest.

Decided 1855-10-15

Dewey, J.

¶1There is no ground for maintaining this action. The title of the plaintiff is derived under a mortgage deed of certain land conveyed in the usual form to a married woman, and, by her sole deed, conveyed in mortgage, her husband not joining in the mortgage. The St. of 1845, c. 208, does not apply to the case.

¶2If it were otherwise, the plaintiff, as mortgagee, could not maintain this action founded upon Rev. Sts. c. 104, to recover possession of the mortgaged premises. Hastings v. Pratt, 8 Cush. 121.

¶3Judgment for the defendant.