Wight v. Barnstable Savings Bank
| Citation | 123 Mass. 183 |
| Parties | William C. Wight v. Barnstable Savings Bank |
| Decision Date | 05 September 1877 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Middlesex. Writ of Entry, dated July 17, 1875, to recover possession of a mill in Holliston, with the water privilege and land required for its use. Plea, nul disseisin.
The case was submitted to the Superior Court, and, after judgment for the tenant, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.
Judgment for the tenant.
H. E Fales, for the demandant.
J. M Day, for the tenant.
Both parties in this case claim title under Henry H. Packer; the tenant, by mortgage of February 24, 1872, under a power contained in which the land was sold on May 28, 1874; and the demandant, by a sale on an execution issued on a judgment recovered for past damages on a complaint for the flowing of land by this same mill. The complaint was instituted on May 24, 1869. Judgment was recovered on June 19, 1873, on an award for past damages, by which was also ascertained what sum would be reasonable for future annual damages, and what in gross for the right of using the dam forever. Execution was issued for the past damages on July 19, 1873, and a levy was made on the same day, which after many adjournments was completed on May 27, 1874, by a sale to the demandant of an equity of redemption, which only, according to the officer's return, Packer had in the premises at the time of the institution of the original complaint. The execution was returned satisfied by the sale.
It is contended by the demandant, that a lien upon the demanded premises for the amount of his judgment for past damages is created by the mill act, and that this lien he has a right to enforce under a levy made within thirty days after judgment, in the manner provided for the sale on execution of rights to redeem mortgaged real estate. Gen. Sts. c. 149, §§ 18, 20, 24-27.
It is not now necessary to pass upon the validity of this claim, for, assuming that the construction of the statute contended for the demandant is the true construction, yet it is plain that the levy of the execution upon "the premises so subject to the lien," must correctly describe the judgment debtor's interest in the estate taken.
It is agreed that in 1869, at the time when the original complaint was instituted, Packer, the respondent...
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