¶1An action to foreclose a mortgage is a real action, which cannot be maintained without proving that the plaintiff has the legal title. That title in real estate could only be transferred by deed acknowledged and recorded. See Youmg v. Miller, 6 Gray, 156, and cases cited. The plaintiff shows no such transfer, and must therefore, according to the agreement of parties, be Nonsuit.
78 Mass. 53
Adams v. Parker
Massachusetts Supreme Judicial Court
Decided November 15, 1858
Massachusetts Supreme Judicial Court · decided 1858-11-15
Writ of entry to foreclose a mortgage of land in Medway. Plea, nul disseisin. The case whether the plaintiff could maintain the action was submitted to the decision of the court upon these facts: On the 23d of September 1853 Emeline Grant, owner in fee of the premises, gave a mortgage thereof to Albert Grant, who on the same day delivered it to the plaintiff with the following writing indorsed upon it: “ Medway, September 23, 1853.
Decided 1858-11-15