Judd v. Tryon

• Decision Date: 22 September 1881
• Citation: 131 Mass. 345
• Parties: Milton Judd v. Albert Tryon
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 345

Milton Judd v. Albert Tryon

Supreme Court of Massachusetts

September 22, 1881

Berkshire.

Exceptions sustained.

J Branning & H. C. Dunham, for the defendant.

J Dewey, (H. C. Joyner with him,) for the plaintiff.

Gray, C. J. Lord & Devens, JJ., absent.

OPINION

Gray, C. J.

This is an action of forcible entry and detainer, under the St. of 1879, c. 237, in order to maintain which the plaintiff must prove that the mortgage from the defendant to him of the lands in question has been foreclosed.

At the trial before the Chief Justice of the Superior Court, the plaintiff, in proof of his entry to foreclose his mortgage, relied on a certificate of two witnesses, sworn to before himself as a justice of the peace, to his open, peaceable and unopposed entry on the land in their presence and for the purpose of foreclosure, and recorded in the registry of deeds within thirty days after such entry, and more than three years before the bringing of this action. The defendant objected that this certificate, sworn to before the mortgagee himself, was not valid or sufficient in law. But the judge ruled otherwise; and a verdict having been returned for the plaintiff, one question presented by the bill of exceptions is whether this ruling was correct.

The learned counsel for the plaintiff, admitting that no man can be a judge in his own cause, contend that the administering of the oath was a ministerial and not a judicial function, and that personal interest in the result does not disable a magistrate to do a ministerial act.

It may be that the administering of this oath was not such a judicial act that the authority of the magistrate, in the absence of any express provision of statute, would be limited to the county for which he was commissioned. Helier v. Benhurst, Cro. Car. 211; S. C. W. Jon. 239. 2 Hale P. C. 50, 51. Kerr v. Ailsa, 1 Macq. 736. Lee v. Wells, 15 Gray 459. Learned v. Riley, 14 Allen 109. But that is not the question before us.

By the statutes of the Commonwealth, after breach of condition of a mortgage, an open and peaceable entry by the mortgagee on the land, not opposed by the mortgagor, if proved by a memorandum or certificate signed by the mortgagor on the mortgage deed, or by a certificate of two competent witnesses, sworn to by them before a justice of the peace, such certificate or such "deposition" being recorded in the registry of deeds within thirty days after the entry, has the same effect as judgment for possession of the land in an action by the mortgagee against the mortgagor; and if the possession obtained in either mode is continued peaceably for three years, the right of redemption is foreclosed, without further suit or act of the mortgagee. Gen. Sts. c. 140, §§ 1, 2. Swift v. Mendell, 8 Cush. 357. Bennett v. Conant, 10 Cush. 163. Lennon v. Porter, 5 Gray 318. Ellis v. Drake, 8 Allen 161.

In the ordinary case of a deposition taken before a justice of the peace after notice to the adverse party, not only the justice, but any person employed by him to write down the deposition, must be a disinterested person. Gen. Sts. c. 131, § 25.

The certificate and deposition of two witnesses to an entry for foreclosure is in effect a deposition in perpetuam taken ex parte, which conclusively and finally establishes, as between the mortgagee and the mortgagor, the facts therein stated. It is as contrary to elementary principles of justice to allow a magistrate to administer the requisite oath to such a certificate of his own entry under a mortgage to himself, as to permit him to take in his official capacity a deposition in a suit to which he is a party, or an acknowledgment of a deed to himself, or a recognizance for a debt due to him personally. Bacon's case, Dyer, 220 b. Co. Lit. 141 a. 2 Rol. Ab. 92,...