Murphy v. Welch

• Decision Date: 02 March 1880
• Citation: 128 Mass. 489
• Parties: Patrick Murphy v. Redmond Welch
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 489

Patrick Murphy v. Redmond Welch

Supreme Court of Massachusetts

March 2, 1880

Middlesex. Tort for breaking and entering the plaintiff's close in Lowell. Writ dated February 25, 1878. Trial in the Superior Court, before Putnam, J., who directed a verdict for the plaintiff, and reported the case for the determination of this court, in substance as follows:

The plaintiff and the defendant are owners of adjoining lots of land on North Street in Lowell. In 1856 both of these lots were owned by Michael Pendergrast, who, on August 6 in that year, mortgaged, by deed containing a power of sale, the lot now owned by the plaintiff to the Lowell Mutual Loan and Fund Association. On the 12th of the same month, the mortgage still outstanding, he conveyed the lot now owned by the defendant to John Cowley, reserving to himself a right of way four feet wide over the land conveyed, and granting to Cowley a right of way of the same width over the lot which he had mortgaged, as above stated, so that there was a way eight feet wide running from North Street to the rear of the lots which way was to remain forever open as a way for the common use of the owners of the two lots. It was admitted that the defendant had used this way daily with his horse and wagon.

On June 1, 1858, the Lowell Mutual Loan and Fund Association, without previously entering upon the premises, sold and conveyed under the power contained in its mortgage, the premises therein described to J. L. Phipps and Henry Souther, and on the same day assigned the mortgage to them, and they at once entered and took possession of the premises under the title so acquired. On May 1, 1861, Phipps conveyed his interest to Souther, who, on March 14, 1865, conveyed the lot to the plaintiff. Since the date of the last-named deed the plaintiff has been in possession, claiming title under the same, and he also occupied the land as tenant at will from June 1, 1858, to the date of his deed from Souther.

The defendant contended that the sale under the power contained in the mortgage was invalid, for certain reasons which it is now unnecessary to state; and also contended that no title passed by the assignment of the mortgage. This assignment purported to be the deed of the Lowell Mutual Loan and Fund Association; and the concluding clause was as follows "In witness whereof the said association, by John W. Graves, its president, duly authorized for this purpose, has hereunto set its seal, and the said John W. Graves, president as aforesaid, has hereunto set his hand," &c. It was signed "John W. Graves, President of L. M. L. and Fund Association," and was sealed. It was also acknowledged by Graves as "the free act and deed of said association."

The defendant offered to show that he and his grantors had acquired a right of way by prescription over the plaintiff's land, against all parties, including the mortgagee, by an uninterrupted use of the passageway from 1846, and also claimed under the conveyance from Pendergrast to Cowley.

The judge ruled that Pendergrast, owning only the equity of redemption, could not create any easement or passageway in the premises mortgaged, either as against the mortgagee or those claiming lawfully under it; that, as the plaintiff's grantor held an assignment of the mortgage as well as a deed of the premises under the power of sale, it was immaterial whether the power of sale was properly...