40. In JA's hand. Pleadings Book, p. 27. In this case JA was of counsel for the defendants, Nathaniel Henshaw and Jonathan Williams, both at the April 1771 Suffolk Inferior Court, where a verdict was entered against them, and at the Aug. 1771 term of the Superior Court, where they lost a second time. The writ, dated 11 March 1771, was probably drawn by Josiah Quincy Jr., who entered the action. See Wendell v. Williams, Min, Bk., Inf. Ct.
Suffolk, April 1771, No. 145; Henshaw v. Wendell, SCJ Rec.
1771, fol. 213; Min. Bk. 95, SCJ
Suffolk, Aug. 1771, N–2; SF
101887. Both Oliver Wendell, plaintiff here, and his cotenant, Jonathan Jackson, were ancestors of United States Supreme Court Justice Oliver Wendell Holmes. Wendell was Holmes' paternal great-grandfather; Jackson (1743–1810), father of Charles Jackson who sat on the Supreme Judicial Court from 1813 to 1824 and who wrote an important treatise on real actions, was his maternal great-grandfather. See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870
177–180 (Cambridge, Mass., 1957). The deed under which Wendell claimed was a mortgage deed, the defendants being second mortgagees who had probably entered under their mortgage. Wendell was seeking to foreclose the mortgage as to them; he obtained a judgment for the sum actually owed him, or possession, if the sum was not paid within two months. See No. 13, note 3
. Jackson, the cotenant, brought an identical suit against these defendants. See Jackson v. Williams, Min. Bk., Inf. Ct.
Suffolk, April 1771, No. 124; Henshaw v. Jackson, Min. Bk. 95, SCJ
Suffolk, Aug. 1771, N–1; SF
101886. JA's minutes are in Adams Papers, Microfilms
, Reel No. 185.
The action here, labeled “ejectment” in accordance with usual Massachusetts practice, was in the nature of a writ of entry, in which the plaintiff declared upon the mortgage deed (or “covenant” as JA has here called it), rather than upon his seisin as mortgagee. This practice was said to be proper where the mortgage condition was part of the deed; the pleader was required to make “profert” of the deed (tender it in court), so that the condition would sufficiently appear. Stearns, citing similar forms printed in American Precedents
354–355 (Brookfield, Mass., 3d edn., 1821), criticized the procedure for its length and complexity, adding, “In its structure indeed, it is more like an action of covenant,
or on the case,
than a writ of Entry,”
Stearns, Real Actions
253–254, 451–452. See note
above. See also No. 17, notes 3–7