
    Luther Thayer and Others versus Adam Smith.
    The entry of a mortgagee, to foreclose the equity of redemption, is not sufficient for the purpose, though made in the presence of witnesses, and though a memorandum thereof be recorded in the registry of deeds, without actual notice to the mortgagor, or open and continued possession.
    This was a writ of entry in the post, wherein the demandants claim an undivided moiety of several parcels of land in Roxbury, and count on the seisin of Benjamin Baker, their ancestor, and upon a disseisin by one John Baker. Trial upon the general issue, before Wilde, J., at the last February term in this county.
    On the 21st of August, 1786, the said Benjamin Baker and others conveyed the demanded premises to the said John Baker in fee; who, on the same day, reconveyed the same to the said Benjamin and others in fee. These last grantees, on the same day, made a deed of defeasance, whereby the last-mentioned conveyance was to be void, on the payment of a certain sum of money in the said defeasance mentioned.
    After the time limited for the payment of the money, the said Benjamin and others entered upon the demanded premises, for the purpose of foreclosing the said John’s equity of redemption, in the presence of two witnesses. But there was no evidence that notice was given to the said John, or that he consented to hold the premises as tenant to the said Benjamin and others. At the time of the said entry he dwelt in a house on the premises, and he continued to live there, occupying the premises until his death; when the tenant, Smith, having taken administration of his estate, entered thereon, and continued in the occupation thereof at the commencement of this action.
    A small parcel of land, included in the said conveyances, lay in the county of Middlesex; and the said Benjamin and others paid taxes for this parcel after their said entry.
    * A memorandum of the entry aforesaid was recorded [ * 430 ] in the registry of deeds, soon after the entry had been made.
    Upon these facts, the demandants contended that the estate of the said Benjamin and others in the demanded premises became absolute, after the expiration of three years from their said entry, and descended to their heirs; and it was admitted that the demandants are the heirs of the said Benjamin, and entitled to a moiety of the demanded premises, if said estate did so become absolute.
    
      But the judge was of opinion, that the equity of redemption was not foreclosed by the entry aforesaid, as it was not followed by any such possession as the law requires; and he so instructed the jury, who returned a verdict in favor of the tenant. If the instruction was right, judgment was to be entered agreeably to the verdict; otherwise it was to be set aside, and a new trial was to be granted.
    
      Chicicering, for the demandants.
    The statute of 1785, c. 22, giving remedies in equity, required, besides the entry in presence of two witnesses, a continued possession by the mortgagee for three years from such entry; but the posterior statute of 1798, c. 77, speaks only of an entry, omitting the three years’ possession; from whence we infer that the entry of Benjamin Baker and others was sufficient, without any thing further, to foreclose the equity of redemption, after three years had expired. It is immaterial whether John Baker continued in possession as tenant to the mortgagees, or as a wrong-doer. If the entry was sufficient, bis right to redeem was gone after three years. The cases of Erskine vs. Townsend 
      , and Newell & Al., Adm’rs., vs. Wright 
      , show that a peaceable entry, without a continued possession, is sufficient. We should not contend that a secret entry, without the mortgagor’s knowledge, would be sufficient. But the case finds no such fact. It finds that John Baker was living upon the mortgaged [ * 431] premises, at the time of the entry; *and the jury had thus sufficient evidence to presume actual notice. They ought to have been instructed to that effect.
    
      Richardson, for the tenant.
    If an entry without notice to the mortgagor is sufficient to extinguish his equity of redemption, great frauds will be committed. A party may unintentionally forfeit his estate for a very inconsiderable portion of its value. He may even have paid the amount due by the mortgage, and if he shall have lost the evidence of such payment, the mortgagee may set up such a clandestine entry, and defraud the mortgagor of his estate.
    The statute of 1785, under which this transaction took place, expressly requires three years’ peaceable possession ; and that of 1798 plainly intends the same thing, in speaking of restoring the possession, of awarding possession, &c. We contend that there must be actual possession by the mortgagee, or something equivalent, as attornment, the payment of rent, or the agreeing to pay it.
    
      
       2 Mass. Rep. 493.
    
    
      
       3 Mass. Rep. 13S.
    
   Curia.

A bare entry, although in the presence of witnesses, is not sufficient for the purpose of foreclosing an equity of redemption. The entry must be open, and peaceable, and actual possession must be taken. The object intended by the law is, that the mortgagor may know when the three years commence, beyond which his right to redeem will cease.

The memorandum placed upon the record can make no difference. As it is not required by law to be recorded, the mortgagor had no reason to inquire at the registry for it. Nothing short of actual notice to the mortgagor will supply the want of a continued possession. The demandants having shown no legal right to the demanded premises, the tenant is entitled to

Judgment on the verdict.  