Hoyt v. Jaques
| Decision Date | 07 September 1880 |
| Citation | 129 Mass. 286 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Benjamin E. Hoyt v. Emily A. Jaques & another |
Argued November 5, 1879
Essex. Writ of entry, against Emily A. Jaques and John Harriman to foreclose a mortgage of land in Haverhill. Plea, nul disseisin. Trial in the Superior Court, without a jury before Pitman, J., who ruled, as matter of law, that the tenants were entitled to judgment, and reported the case for the determination of this court. If the ruling was incorrect the case was to stand for trial; otherwise, judgment to be entered for the tenants. The facts appear in the opinion.
Judgment for the tenants.
W. H Moody, for the demandant.
J. P. Jones, for the tenants.
The demandant claims title to the demanded premises under a mortgage to him made by John Harriman. The premises were formerly the separate estate of Mary Anne Harriman, the wife of John. She died leaving a will, of which the second clause is as follows: "I give, devise and bequeath to my said husband and executor so much of any and all my estate, whether real or personal, of which I may die seised or possessed, as may be sufficient for his comfortable maintenance and support for and during the term of his natural life, he having full power to sell and convey any and all of my real estate, at any time, if necessary to secure such maintenance." The third clause gives the rest and residue of her estate to her daughter, Emily A. Jaques, one of the tenants. The husband of the testatrix did not, before her death, give his written assent to the will or its provisions; and the tenants contend that it was invalid, so far as it affected John Harriman's right as tenant by the curtesy. But the want of such assent did not render the will wholly void. Burroughs v. Nutting, 105 Mass. 228. And we have not deemed it necessary to consider whether the acts of the husband after her death, in proving the will and accepting its provisions in his favor, were or were not a waiver of his rights as tenant by the curtesy and an election to take under the will, because it is not material to the decision of this case. If, after the death of his wife, the only interest of Harriman was a tenancy by the curtesy, he was divested of that interest by the levy of the execution against him in favor of Eben S. Flint and others, his judgment creditors. The levy and set-off to said judgment creditors having been made before the mortgage to the demandant, it would follow that the demandant took nothing by his mortgage. If, on the other hand, Harriman took under the will, it is clear that, upon the true construction of the second clause, he did not take any greater estate in the premises than a life estate, with a power to sell the whole or any part, if it was necessary to secure to him a comfortable maintenance and support. Gibbins v. Shepard, 125 Mass. 541. Paine v. Barnes, 100 Mass. 470.
The question then arises whether this power to sell for the purpose of support includes a power to make a mortgage in fee. In the ordinary case of a power "to sell and convey" land, given by a principal to his attorney,...
To continue reading
Request your trial
-
Holland v. Bogardus-Hill Drug Co.
...Mo. loc. cit. 453, 165 S. W. 1035. On page 394 Judge Ray quotes with approval the ruling of the Supreme Court of Massachusetts in Hoyt v. Jaques, 129 Mass. 286, loc. cit. 288, as "The two transactions of a sale and a mortgage are essentially different; a power to sell implies that the attor......
-
Orr v. Rode
...Price v. Courtney, 87 Mo. 387; Price v. Estell, 87 Mo. 378; Bloomer v. Waldron, 3 Hill, 361; Ferry v. Laible, 31 N.J.Eq. 567; Hoyt v. Jaques, 129 Mass. 286; 1 Jones on [3 Ed.] sec. 129. (2) Even if the power to sell ordinarily included the power to raise money for the same purpose by mortga......
-
Holland v. Bogardushill Drug Company
...v. Ryland, 256 Mo. l. c. 453.] On page 394 Judge Ray quotes with approval the ruling of the Supreme Court of Massachusetts in Hoyt v. Jacques, 129 Mass. 286, c. 288, as follows: "The two transactions of a sale and a mortage are essentially different. A power to sell implies that the attorne......
-
American Oil Co. v. Marion County
...54 Miss. 90, 105; Picket v. Buckner, 45 Miss. 226; Hawxhurst v. Rothgeb, 63 Am. St. Rep. 142; Stokes v. Payne, 58 Miss. 614; Hoyt v. Jacques, 129 Mass. 286; State Hart, 43 N.E. 7; Borough v. County of Sibley, 28 Minn. 515; Roper v. McWharten, 77 Va. 215; Hawkins v. Carroll County, 50 Miss. ......