Anthony v. Anthony

• Decision Date: 17 May 1894
• Citation: 161 Mass. 343,37 N.E. 386
• Parties: ANTHONY v. ANTHONY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 343

37 N.E. 386

ANTHONY v. ANTHONY et al.

Supreme Judicial Court of Massachusetts, Bristol.

May 17, 1894

COUNSEL

William C. Parker and William M. Butler, for demandant.

H.M Knowlton and T.F. Desmond, for defendants.

OPINION

KNOWLTON J.

This was a writ of entry to foreclose a mortgage, tried before a justice of the superior court without a jury. The tenants excepted to the refusal of the court to rule that there was no evidence to warrant a finding for the demandant and to certain rulings in regard to the admission of evidence. The defenses principally relied upon were the statute of limitations, adverse possession of the premises maintained for more than 20 years prior to the commencement of the suit, and payment or satisfaction of the mortgage debt. The statute of limitations was not pleaded, and this fact alone might be a sufficient answer to the tenant's claim under it at the trial. Moreover, this statute is not a bar to a writ of entry brought by a mortgagee against a mortgagor, unless it appears that the mortgagee was disseised by the mortgagor 20 years or more before the action was brought. Bacon v. McIntire, 8 Metc. (Mass.) 87.

The lapse of time since the mortgage debt became due was such as to furnish a presumption of payment, had there been no explanation of it. Kellogg v. Dickinson, 147 Mass. 437, 18 N.E. 223. But the evidence showed very clearly that the debt had not been paid. Indeed, the tenant contended that the mortgagee never intended to exact payment, nor to have the mortgage enforced. There was also evidence to justify the court in finding that the mortgage was never satisfied otherwise than by payment. This finding of fact we cannot revise, and the correctness of it we have no occasion to question.

On the question whether there was a disseisin and an adverse use by the mortgagor and those claiming under him, continued for 20 years, there was ample evidence to warrant the finding against the tenant. See Holmes v. Turner's Falls Co., 150 Mass. 548, 23 N.E. 305.

Jonathan Anthony, the mortgagee, a resident of Portsmouth, R.I., died on December 17, 1870. His will was admitted to probate there on February 13, 1871, and Gould Anthony, the demandant, and Joseph Anthony, were appointed executors. On March 4, 1892 the will was proved in Massachusetts, and the demandant was appointed executor here. On December 13, 1878, one William Barker, acting under a power of attorney for the executors appointed in Rhode Island, made an open and peaceable entry upon the mortgaged premises, in the presence of two witnesses, for the purpose of foreclosing the mortgage, and caused a certificate to be made and recorded in accordance with the statute, and on the same occasion had an interview with the widow and a daughter of the mortgagor, who were then living on the premises. There was some conflict of evidence as to what occurred at this interview, and as to whether the tenant, Benjamin P. Anthony, was present. ...