Woodward v. Pickett

Bigelow, J. The conveyance by Washburn to Hall and others, trustees, dated April 30th 1844, and the bond from said Hall and others to Washburn, of the same date, by which they agreed to reconvey the same estate to Washburn on the payment of $700 in seven years, were parts of one and the same transaction, and constituted a mortgage. Taylor v. Weld, 5 Mass. 109. Lanfair v. Lanfair, 18 Pick. 299. Nugent v. Riley, 1 Met. 117. It does not alter the nature of this transaction, that Hall and others, trustees, held a previous mortgage on the same premises, from Susanna Mattoon, a former owner of the estate. The only effect of this prior mortgage was to make the conveyance of April 30th 1844, in connection with the bond, a second mortgage. Washburn was therefore owner of the equity of redemption, and by his deed of a portion of the estate to the Vermont and Massachusetts Railroad Company conveyed the right to redeem that part to the corporation. The facts show no foreclosure of either of the mortgages, nor any entry on the locus in quo for the purpose of foreclosure by the mortgagees. The corporation were therefore in the actual possession of the premises as owners of the equity, and had a right to the annual crop, and to authorize the defendant to take it. For this taking it is clear that the mortgagee, the present plaintiff, cannot maintain trespass. Page v. Robinson, 10 Cush. 99. Judgment for the defendant.