Freeman v. Atwood

The facts, relating to the question considered by the Court, sufficiently appear from their opinion which was drawn up by Davis, J. -The statute provides three modes of foreclosing a mortgager’s right of redemption, by taking possession of the premises. One of these is as follows : — " The mortgagee may enter peaceably and openly, in the presence of two witnesses, and take possession of the premises ; in which case, a certificate of the fact and time of such entry shall be made and signed and sworn to by such witnesses before any justice of the peace; and such certificate [474] shall be recorded in each registry of deeds in which the mortgage is recorded; and no such entry shall be effectual, unless such certificate shall be recorded within thirty days next after such entry is made.” In the case at bar, the mortgagee took possession of the mortgaged premises in 1844; and three times, in 1845, 1846 and 1848, he called witnesses, who made a certificate, each of which, being recorded, is claimed by the defendant to be.sufficient to work a foreclosure.. The plaintiff claims to redeem, on the ground that they are defective. Several objections ai’e urged, one only of which is worthy of consideration. It is contended that neither of the certificates states the time of the entry. In this respect they are alike, as follows : — "Be it remembered, that Caleb Holyoke.of Brewer, in the county of Penobscot, in presence of us, made open and peaceable entry into the following described premises, &c. ■ " In witness whereof we have hereunto set our hands this -day of-,” &c. The date is inserted in each; and the certificate of the justice of the peace, before whom each is sworn to, is of the same date. And each certificate appears to have been recorded within thirty days afterwards. The counsel for the defendant contends that the date of the entry and the date of the certificate must be presumed to have been the same. But the only fact certified is, that the mortgagee made the entry. • When he made it, does not appear, except that it was in time past. Some time had elapsed; how long time is not stated. All that is embraced in the certificate may be strictly true, and yet the entry have been made many times thirty days before the certificate was made or recorded. The process of foreclosure is one of the modes of divesting a person of his interest in the property, to which he is not a party. The mortgagee must strictly perform all the conditions required by the statute, or the right of redemption will not be barred. Neither of the certificates in the [475] caso before us so states the time of the entry that it appears to have been recorded afterwards within thirty .days, The bill is sustained; and a master is to be appointed to determine the amount due upon the mortgage. Rice, Appleton, Cutting, Kent and Walton, JJ. concurred.