Brown v. Smith
| Decision Date | 05 October 1874 |
| Citation | 116 Mass. 108 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | L. Brown v. Hannah Smith & another |
Worcester. Writ of entry against Hannah Smith and her husband, Henry C. Smith, to recover a tract of land in Westborough. Hannah Smith pleaded nul disseisin. Henry C Smith pleaded non-tenure and disclaimer.
At the trial in the Superior Court, before Bacon, J., it appeared that the demandant's title was derived from a sale of the land on execution as the property of the last named defendant, the same having been attached on February 9, 1870 in an action by the demandant against him.
It further appeared that Henry C. Smith was on April 24, 1868 the owner of the demanded premises, and on that day he conveyed the same in mortgage to George W. Mann. The deed contained a clause authorizing the grantee and his legal representatives, on breach of condition, to sell the granted premises and all benefit and equity of redemption of the grantor, and to execute the necessary deed to convey the premises in fee simple: provided that the person herein authorized to make such sale "shall make before some justice of the peace an affidavit, that he had at the time of such sale an interest in this mortgage, that such sale was made at public auction, on or near said granted premises, and that notice was given of the time and place of such sale, by posting up notifications thereof, thirty days at least before the time of sale, in two public places in said town of Westborough, and publishing the same three weeks successively in some newspaper printed in said county of Worcester, and that such affidavit shall be so made, and, together with a copy of the notice, shall be recorded in the registry of deeds for said county of Worcester within thirty days after such sale."
This mortgage was assigned June 14, 1869, by Mann to Cyrus Fay, to whom also Henry C. Smith had on July 2, 1868, conveyed the demanded premises in mortgage, by a deed whereby the grantee was authorized to sell the premises, in case of any breach by the grantor in the conditions of the deed, and to convey the same in his own name or as attorney of the grantor.
The tenant Hannah Smith put in evidence a deed, dated January 20 1871, of the premises from Cyrus Fay to John A. Fayerweather; and a deed of the same premises from Fayerweather to her, dated January 20, 1871. Both of these deeds were duly recorded. Annexed to the first deed was an affidavit made by Fay, which set forth his acts under the powers in the two deeds, but omitted to set forth that he had at the time of the sale an interest in the mortgage. The deed from Fay to Fayerweather recited the two mortgages; that there had been default in respect to...
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