Stephen E. Searle v. James M. Chapman &Amp; Wife
| Decision Date | 29 September 1876 |
| Citation | 121 Mass. 19 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Stephen E. Searle v. James M. Chapman & wife |
Hampshire. Writ of entry to foreclose a mortgage of a parcel of land in Northampton. Plea, nul disseisin, with a specification of defence that the first named tenant had a homestead estate in the land. Trial in the Superior Court before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows:
The demandant is the assignee of a mortgage given by the first named tenant on May 25, 1863, to secure the payment of $ 2500. The deed contained full covenants of warranty, and a release of dower and homestead. The other tenant is the owner of the equity of redemption of the mortgaged premises.
There was evidence tending to show that the larger part of the premises, described in the mortgage, had been owned and occupied by the tenants and their children since 1853 as a homestead, though no declaration of homestead had been filed.
The tenants contended, and offered evidence tending to prove that the premises were of sufficient value to satisfy the mortgage debt, without resorting to the part which would be set off as the homestead; and asked the judge to rule that so much of the premises, including the house where the tenants live, of the value of $ 800, could not be taken by the mortgagee, in case the other property included in the mortgage was sufficient to satisfy the mortgage debt; but the judge declined so to rule, and ordered judgment for the demandant; and the tenants alleged exceptions.
Exceptions overruled.
D. W. Bond & H. H. Bond, for the tenants, cited McLaughlin v. Hart, 46 Cal. 638; Jarboe v. Colvin, 4 Bush 70; Twogood v. Stephens, 19 Iowa 405; Barker v. Rollins, 30 Iowa 412; Chapman v. Lester, 12 Kan. 592; White v. Polleys, 20 Wis. 503.
W. G. Bassett, for the demandant, was not called upon.
The mortgage deed having been, as was admitted at the argument, executed by the husband and wife in due form to release all rights of dower and of homestead, those rights, as well as every other title of the husband in the premises, passed to the mortgagee, and were equally liable to him for the payment of the mortgage, and could not be set up either as a ground for redemption or as against a foreclosure, except upon the terms of paying the whole mortgage debt.
The power of a court of chancery to compel a mortgagee to resort in the first instance to one of several...
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