
    ASHER F. BLACK, PETITIONER.
    Middlesex,
    October, 1902.
    
      Mortgage — Invalid Foreclosure — Purchase by Husband of Mortgagee — Assignment by Wife to Husband.
    
   Title in this case is claimed under tbe foreclosure of a mortgage. At tbe time of tbe foreclosure tbe mortgage was beld by a married woman wbó, having first entered on tbe premises under Public Statutes Cbap. 181, sec. 1 and 2, then made, or attempted to make, a sale under tbe power in tbe mortgage to ber husband, wbo was tbe highest bidder at tbe sale. Tbe attempted foreclosure by sale was invalid however, by reason of failure to publish notice in tbe County of Suffolk as required by tbe terms of tbe mortgage.

If tbe foreclosure sale bad been valid there would have been no difficulty because of tbe relationship of husband and wife between tbe purchaser and tbe mortgagee. Tbe sale in that event would have been merely tbe exercise of a .power, a conveyance by tbe mortgagor through bis duly authorized attorney; not in any sense a conveyance by tbe wife, nor an assignment of ber mortgage. Hall v. Bliss, 118 Mass. 554. Hermanns v. Fanning, 151 Mass. 1, 5. Tbe sale being invalid, it is argued that it nevertheless operated as an assignment, and inured, with tbe benefit of tbe entry, to tbe purchaser. Here, however, tbe relationship of bus-band and wife is fatal. It is familiar law that where a foreclosure by sale fails by reason of informality,' tbe deed to tbe purchaser will, nevertheless, if in apt form therefor, operate as a conveyance of tbe mortgagee’s estate, and an assignment of tbe mortgage debt; and tbe prior entry, and tbe estate eventually acquired thereunder, will inure to tbe benefit of tbe ultimate bolder of sucb mortgage title. Brown v. Smith, 116 Mass. 108. Dearnaley v. Chase, 136 Mass. 288.

In tbis case, however, tbe deed, being a deed between bus-band and wife, is absolutely void, either by way of assignment of debt, conveyance of tbe mortgagee’s estate, or foundation for subsequent title by estoppel. National Granite Bank v. Whicher, 173 Mass. 517. P. S., C. 147, Sec. 3 — B. L., C. 153, Sec. 3. Townsley v. Chapin, 12 Allen 476. Mason v. Mason, 140 Mass. 63. (Note, and see Graves v. Broughton, 185 Mass. 174.)

Tbe Massachusetts cases cited in Jones, Eeal Property, Sec. 45, are cited solely in regard to tbe equitable rights of creditors or heirs in cases of conveyance between husband and wife through a conduit. None of them are cases of direct conveyance, nor are they intended to be cited as such.

Title is, therefore, not in the petitioner, but in the mortgagee under her entry. A deed must be obtained from her before there can be registration in the petitioner.

So ordered.  