Lund v. Woods

Massachusetts Supreme Judicial Court
Lund v. Woods, 52 Mass. 566 (Mass. 1846)
Wilde

Lund v. Woods

Opinion of the Court

Wilde, J.

This was a bill in equity to redeem a mortgage in the right of the wife, and the defendant admits that James Blood, her first husband, was seized of a right in equity to redeem the mortgaged premises, during her coverture with him ,• but he denies that she ever was or now is entitled to dower. He admits, however, that she has never released her right of dower, but avers that on the 30th day of May 1833 the mortgage was foreclosed, by the entry of Edmund Page, the mortgagee, (from whom the defendant derives his title,) with the consent of the said James Blood, and that he and the defendant have had possession ever since. But we think it very clear, from the facts, that the plaintiffs cannot be barred by any such entry, unless notice was given to the widow, after the death of her first husband; and that an entry for the purpose of foreclosing the mortgage, after the mortgagee had purchased the equity of the said Blood, was inoperative. It was, indeed, an absurdity. Page had the whole estate. The plaintiff’s right was then conditional and inchoate, and was only perfected by her surviving her husband. She therefore could not be barred of her claim, unless she had notice, *570after the death of her husband, that Page or the defendant held the premises for the purpose of foreclosing her right of redemption. It is alleged in the answer that such notice was given by the said Page. But this allegation is not responsive to the bill, and is traversed by the replication; and the evidence fails to prove that any such notice was given by Page or the defendant. Page testifies, it is true, that she knew that he assigned the premises under his mortgage and the quitclaim deed from her husband; that he had frequent conversations with her; and that he so informed her. But there is no evidence that it was notified to her that he held the premises for the purpose of foreclosing the mortgage if she should not redeem it. She knew that her husband had released his right in equity, but she knew also that she had not relinquished her right of dower, and that if Page or the defendant intended to bar her right, they were bound to give her notice, three years before she could be barred, of their intention, which notice must be proved, and is not to be presumed from the possession. We are therefore of opinion that the evidence is insufficient to bar the right of dower claimed by the plaintiffs, and that they are entitled to redeem the mortgage according to the principles laid down in Gibson v. Crehore, 5 Pick. 140, and in other cases.

Reference

Full Case Name
William P. Lund & wife v. Varnum Woods
Status
Published