Tompson v. Tappan

C. Allen, J. The plaintiff in this case presents but two questions: first, that the entry to foreclose was illegal and void; and secondly, that the receipt of money or value from the other security, before the foreclosure became absolute, was a waiver of the foreclosure. 1. The entry to foreclose, being made and recorded in the manner provided by statute, was valid and effectual for the purpose of foreclosure, although the mortgagee was the owner of the equity of redemption, subject to a second mortgage on the same premises, and although the holder of the second mortgage was ignorant that such entry had been made for more than three years thereafter. Fletcher v. Cary, 103 Mass, 475, 478. Ellis v. Drake, 8 Allen, 161. 2. The fact, that, before the expiration of three years from the date of such entry, the mortgagee received the avails of other security held by him for the same debt, but to an amount less than the amount of the mortgage debt, does not of itself, and without other evidence, prove an intention on his part to waive the foreclosure. Lawrence v. Fletcher, 10 Met. 344. Bennett v. Conant, 10 Cush. 163, 167. Hobbs v. Fuller, 9 Gray, 98. It becomes unnecessary to consider the matter of loches. Bill dismissed.