Short v. Caldwell

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: ALLEN, J.
• Citation: Short v. Caldwell, 155 Mass. 57, 28 N.E. 1124 (Mass. 1891)
• Decision Date: 25 November 1891
• Parties: SHORT et al. v. CALDWELL et al.

155 Mass. 57

28 N.E. 1124

SHORT et al. v. CALDWELL et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1891

COUNSEL

F.S. Hall, for petitioners.

R.O Harris, for respondents.

OPINION

ALLEN J.

The respondents contend that there is no jurisdiction to entertain this petition, because they are non-residents. If that were so, the non-residence of any one of the heirs of the mortgagee would defeat the operation of the statute. The respondents contend that the same rule is applicable to the statute under which this petition is brought, (St.1882, c 237,) as to Pub.St. c. 176, authorizing the court to compel a supposed claimant of land to bring an action to try his title, under which the court has declined to take jurisdiction against non-residents, unless personal service has been made within the commonwealth. Macomber v. Jaffray, 4 Gray, 82; Leary v. Duff, 137 Mass. 150; Thompson v. Cowell, 148 Mass. 552, 20 N.E. 170. There is, however, an important difference between the two statutes. Pub.St. c. 176, authorizes a decree in personam, while St.1882, c. 237, authorizes a decree which simply operates on the estate. The respondents are not called up on to do anything under it. The estate is here, and the court may proceed to enter a decree which affects it, even though persons interested therein may be non-residents. Spurr v. Scoville, 3 Cush. 578; Felch v. Hooper, 119 Mass. 57.

The respondents further contend that St.1882, c. 237, does not apply to a mortgage which is created by a deed absolute in form and a separate instrument of defeasance. We see no good reason in support of this contention. As between the parties themselves, the relation in such case is the same as if the mortgage had been in the ordinary form. Tilden v. Greenwood, 149 Mass. 567, 569, 22 N.E. 45, and cases there cited. And although the omission to record the bond might endanger the mortgagor's title, by enabling the mortgagee to give a good title to a third person, such record was unnecessary as between themselves. Bryan v. Insurance Co., 145 Mass. 389, 390, 14 N.E. 454. It being unnecessary to record the bond, the argument as to the need of an acknowledgment of it fails, and we need not consider whether otherwise it would have weight.

The respondents further contend that recording the bond in 1860 amounted to an admission that the mortgage debt had not then been paid, and is sufficient, in the absence of...