Manahan v. Varnum

Decided October 15, 1858

Massachusetts Supreme Judicial Court · decided 1858-10-15

Writ of entry to foreclose a mortgage of land in Dracut, made on the 23d of January 1854, to the trustees of the Merrimack Mutual Loan Fund Association, which was not then incorporated, and by them assigned to the plaintiff on the 19th of May 1856. Pleas, nul disseisin ; that the bond secured by th mortgage was usurious; that the assignment was unauthorized and void; and that the plaintiff could not maintain this action.

Decided 1858-10-15

By the Court.

¶1The mortgage, being originally made to the trustees of the Merrimack Mutual Loan Fund Association, vested the legal estate in the trustees. No evidence was offered that the by-laws imposed any restraint upon alienation, which would prevent the trustees from transferring a legal title to the mortgage. The plaintiff showed a valid assignment which vests the legal title in him.

¶2There being something still due on the mortgage, after deducting the forfeitures for usury, if usury was taken, the party was still entitled to judgment, and the amount of the conditional judgment will be settled hereafter.

¶3There is nothing in the St. of 1854, c. 454, which transfers the title of a voluntary loan fund association to a corporation formed under that statute, without a legal, formal conveyance or assignment. Holland v. Cruft, 3 Gray, 173.

¶4Exceptions overruled.