Knight v. Thayer

• Decision Date: 18 July 1878
• Citation: 125 Mass. 25
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Horatio G. Knight v. Mary G. Thayer & others

125 Mass. 25

Horatio G. Knight v. Mary G. Thayer & others

Supreme Court of Massachusetts

July 18, 1878

Argued September 18, 1877

Hampshire. Writ of entry, dated February 2, 1877, against Mary G Thayer, Benjamin E. Thayer and Lucy A. Knight, to foreclose a mortgage of land in Easthampton. The two first named tenants disclaimed title to the freehold. The tenant Knight pleaded nul disseisin. The case was submitted to the Superior Court and, after judgment for the demandant, to this court, on appeal, on agreed facts, in substance as follows:

The two first named tenants are husband and wife, having been married prior to any of the transactions herein stated. The other tenant is their daughter.

The demandant claimed title under a mortgage made on December 21 1871, by Mary G. Thayer to the demandant and George H Sprague. The conveyance was in consideration of $ 1000, and was subject to a prior mortgage for $ 1500 held by Ebenezer Ferry. The deed contained the following covenants: "And I do for myself, my heirs, executors and administrators, covenant with the said Knight and Sprague, their heirs and assigns, that I am lawfully seised in fee of the aforegranted premises; that they are free of all incumbrances, except the mortgage above stated, that I have good right to sell and convey the same to the said Knight and Sprague and that I will warrant and defend the same premises to the said Knight and Sprague, their heirs and assigns forever, against the lawful claims and demands of all persons." The condition was the payment of a promissory note of $ 1000 by the grantor on July 1, 1872. Benjamin Thayer signed the deed, and his name appeared in the testimonium clause in token of his assent, but did not appear as grantor. Sprague's interest has since been assigned to the demandant.

On May 2, 1864, Benjamin E. Thayer conveyed the land, by a mortgage deed with power of sale, to Ebenezer Ferry. On June 19, 1869, Benjamin conveyed the land to one Clark, who, on July 12 following, conveyed it to Mary G. Thayer. On August 6, 1874, Frances A. White, who is now living, and who then, and at the time of the mortgage to Ferry, had a valid life estate in the land, conveyed the same to Mary G. Thayer. On August 24, 1874, Ferry, for breach of condition in the mortgage to him, sold the land, under the power, to William G. Bassett, and executed a deed thereof to him; but neither Bassett nor any one claiming under him, has ever been in actual possession of the land. On January 1, 1875, Mary G. Thayer conveyed the premises, including the life estate, to Lucy A. Knight, as whose tenant, Benjamin is in possession. All the above mentioned deeds were recorded at or about their dates.

"Any fact or deed recited, which would not be admissible against objection, is not to be taken as admitted. When any party would be bound by the rules of law, by estoppel or rebutter, the same are to apply in the determination of this case." Such judgment is to be entered as the court shall order.

Judgment affirmed.

W. G. Bassett, for the demandant.

G. D. Robinson & L. E. Hitchcock, for Lucy A. Knight.

OPINION

Gray, C. J.

By the common law of Massachusetts, the warranty deed of a married woman, though executed in such form as to convey her title did not operate against her by way of...