Phelps v. Townsley

Decided September 15, 1865

Massachusetts Supreme Judicial Court · decided 1865-09-15

Petition for partition. The following facts were agreed in the superior court: The petitioner claimed title under the foreclosure, by himself, of a mortgage of one undivided half of the premises, originally given by Wells Lathrop to George Frost, in 1842, and assigned by the administratrix of the estate of Frost to John Mills, who assigned the same to the petitioner, the assignment reciting that it was made “ for the purpose of protecting any one to whom said Phelps has made…

Decided 1865-09-15

Bigelow, C. J.

¶1The mortgage under which the petitioner claims as assignee, having been duly foreclosed, clearly vests in him a paramount title to one half of the premises in controversy, which entitles him to seek for partition.

¶2If, as is urged by the respondent, the assignment of the mortgage to the petitioner creates a trust in him by which he is bound, we do not see that the partition for which he seeks will violate that trust. And if it would, we know of no ground on which an alleged violation of a trust can be set up in a court of law as an answer to a valid legal title in the petitioner. A remedy for the enforcement and regulation of a trust must he sought in equity.

¶3Partition ordered.