Shelton v. Atkins

Shaw C. J. delivered the opinion of the Court. This [73] is a bill to redeem mortgaged premises, brought by the plaintiffs as heirs at law of Richard Shelton, and through him as heirs at law of Susannah Daker, mother of Richard Shelton. We have not stopped to inquire whether these are the proper parties, as heirs, to bring the bill to redeem, or whether there should have been an administration on the estate of Susannah Daker or of Richard Shelton. The parties have not brought those questions before us, and as the Court are of opinion, that the mortgage is foreclosed, and no one has a right to redeem, those questions are immaterial. It appears that the mortgage was given on the 1st of June, 1822, by Susannah Daker to George Sullivan, to secure a sum therein expressed, with interest semiannually. Before the expiration of six months, and before any interest became due, Mrs. Daker died. On the 2d of July, 1822, Mr. Sullivan assigned the mortgage to Hannah Proctor. Mr. Sullivan received the rents for several years, but it does not appear by what title, as he had assigned his mortgage before any interest was due, and it does not appear that he received them in behalf of Mrs. Proctor, the assignee. In about 1826, Mrs. Proctor placed the bond and mortgage in the hands of Mr. Minot as her attorney, and tie demanded and received the rents for several years. Whether this could be deemed in law an entry to foreclose, and by continuance more than three years, an actual foreclosure, it is not necessary to determine. It appears that in 1832, Mrs. Proctor died, and the defendant Atkins was appointed her administrator. As such administrator, he had authority to bring his action and recover the mortgaged premises. St. 1788, c. 51, § 1. In 1833, as such administrator, he brought his action on the mortgage against one George Low, who was then tenant in possession, recovered the conditional judgment, and the amount not being paid in two months, he took out his writ of habere facias, and entered under it in June, 1833, and continued to hold possession more than three years. The Court are of opinion, that this constituted a complete foreclosure. It is objected that this judgment and the proceedings under it, ougnt not to have this effect, because Low had formerly been the tenant of Mrs. Proctor, and at all events was not the [74] tenant of the plaintiffs, and that a judgment against him ought not to bind them. In the first place, it is very clear, that at the time of this proceeding, Low was not the tenant of Atkins. The latter demanded of him to attorn or surrender the possession, which he refused and denied the right of the administrator. His holding therefore became adverse from that time, whatever it had been before. He was a stranger, he might be treated as a disseisor, and, as such, a tenant of the freehold, for the purpose of the writ. But to make such a judgment good against particular persons, in favor of a mortgagee, it is not necessary, that they should be summoned, or that the defendant in the suit should be their tenant or agent. It is sufficient that the suit is brought against the tenant in possession. Keith v. Swan, 11 Mass. R. 216 ; Hunt v. Hunt, 17 Pick. 118. And it appears to us entirely right that it should be so, and that mortgagees would be put to great difficulty if it were otherwise, in finding a good tenant to the precipe and obtaining a valid judgment to effect a foreclosure against all persons. The security of a mortgage, is a security in rem. The mortgagee looks to the land. If the mortgager has been left in possession, the law presumes, that he remains in possession, or some person by his permission, or in privity with him, and that person is the: tenant in possession. But further, three years are allowed by law, after condition broken, to enable all persons, who have equitable rights to redeem, to discover and assert them. The mortgage, under which they claim, is of record. By reference to it, they can ascertain what the conditions are, and if they suffer more than three years to expire, after condition broken,, without taking any measures to redeem, it is at their own peril. The Court are of opinion, that the judgment in favor of the administrator of the assignee of the mortgage, against the tenant in possession, and the entry under it, was good and sufficient to commence the legal term, for foreclosure, and the continuance of that possession three years, before any tender or bill brought to redeem, was a complete foreclosure. Bill dismissed.