Brouillard v. Stimpson

Decision Date26 February 1909
Citation87 N.E. 493,201 Mass. 236
PartiesBROUILLARD v. STIMPSON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

J. A. Harris and J. P. Barlow, for demandant.

Jas. L Powers, for Mary E. Stimpson.

Dwight Powers, for Robert W. Stimpson.

OPINION

RUGG J.

This is a writ of entry. The demandant is a judgment creditor under a special attachment, and since the institution of his action has seasonably pursued his remedy under Rev. Laws, c. 178, § 47, as against the person then the holder of the record title to the demanded premises. The tenants are holders of a title acquired by the foreclosure of a prior mortgage. The affidavit of sale filed in the registry of deeds in connection with the foreclosure recites a default in the payment of interest upon the note secured by the mortgage. The demandant has proceeded upon the theory that there was no such default. It is not necessary to pass upon the soundness of this contention, for it has been found as a fact not now open to discussion, that at the time of the foreclosure there was a default in the performance of the condition of the mortgage in that taxes were unpaid. The person foreclosing the mortgage is not estopped by the recitals of the affidavit to show what defaults actually existed. The statutory provisions as to the affidavit are merely directory and the statements it contains are evidence only, and if the foreclosure is legally made upon any real default, it is valid without the recording of any affidavit or one which innocently states a wrong default. Atkins v. Atkins, 195 Mass. 124, 80 N.E. 806, 11 L. R. A. (N. S.) 273, 122 Am St. Rep. 221. The principle is too well settled for extended discussion that extrinsic evidence was admissible to show that the mortgage was given for construction purposes, and that the full amount named had not been paid by the mortgagee for the reason that the conditions under which the balance was to be advanced were never complied with. The consideration named in a mortgage deed or note is open to inquiry and may be proved by oral evidence. Saunders v Dunn, 175 Mass. 164, 55 N.E. 893; Hampden Cotton Mills v. Payson, 130 Mass. 88. There was not the slightest testimony that the original mortgagee had not advanced all that it had agreed to until further construction had been done upon the buildings on the land. There is no doubt as to the validity of the title acquired by the foreclosure.

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