337 Mass. 48 (1958), Gladstone v. Treasurer and Receiver General

Citation:337 Mass. 48, 147 N.E.2d 786
Party Name:David GLADSTONE v. TREASURER AND RECEIVER GENERAL.
Case Date:February 19, 1958
Court:Supreme Judicial Court of Massachusetts
 
FREE EXCERPT

Page 48

337 Mass. 48 (1958)

147 N.E.2d 786

David GLADSTONE

v.

TREASURER AND RECEIVER GENERAL.

Supreme Judicial Court of Massachusetts, Middlesex.

February 19, 1958

Argued Nov. 5, 1957.

[147 N.E.2d 787] Alan M. Qua, Lowell (Francis M. Qua, Lowell, with him), for plaintiff.

Samuel W. Gaffer, Asst. Atty. Gen. (Jacob M. Levenson, Boston, with him), for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

RONAN, Justice.

This is the plaintiff's exception to the direction of a verdict for the defendant in an action of contract brought under G.L. (Ter.Ed.) c. 185, §§ 101, 102, by the assignee of the owner of registered lands in Billerica to receive compensation from the assurance fund for loss of land or his interest therein due to the alleged error, omission,

Page 49

or mistake of the assistant recorder or assistants of the Land Court in issuing two certificates of title to a purchaser at the foreclosure sales of mortgages upon said land. The main contention of the plaintiff is that the foreclosure proceedings were not in conformity with the statute in that the notice of the sale was published in the 'Lowell Sun' when it should have been published in the 'Billerica News.'

General Laws (Ter.Ed.) c. 244, § 14, provides that a foreclosure under a power of sale shall be ineffectual unless notice has been published 'in a newspaper, if any, published in the town where the land lies. If no newspaper is published in such town, notice may be published in a newspaper published in the county where the land lies, and this provision shall be implied in every power of sale mortgage in which it is not expressly set forth. A newspaper which by its title page purports to be printed or published in such town, city or county, and having a circulation therein, shall be sufficient for the purpose.' See also G.L. (Ter.Ed.) c. 4, § 6, Eighth, and c. 236, § 28.

The place of publication of a newspaper is a question of fact to be decided by the judge or jury like any other issue involving domicial. See Tuells v. Flint, 283 Mass. 106, 109, 186 N.E. 222; Russell v. Holland, 309 Mass. 187, 191, 34 N.E.2d 668; Levanosky v. Levanosky, 311 Mass. 638, 642, 42 N.E.2d 561; Rummel v. Peters, 314 Mass. 504, 517, 51 N.E.2d 57; Hopkins v. Commissioner of Corporations and Taxation, 320 Mass. 168, 173, 68 N.E.2d 659. Since the trial judge directed a verdict for the defendant, the issue is whether the plaintiff introduced sufficient evidence to present an issue of...

To continue reading

FREE SIGN UP