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Browsing: Legal Papers of John Adams, Volume 1


This note contained in document ADMS-05-01-02-0006-0001-0001
15. See Amory v. Fairbanks, 3 Mass. 562 (1793); Coit v. Fitch, 1 Kirby (Conn.) 254 (Super. Ct. 1787); 1 Glenn, Mortgages 436–437. Since 1836, a Massachusetts statute has provided that if the mortgagee recovers on a deficiency after foreclosure, the right to redeem is reopened for a year. Mass. G.L., c. 244, §35. Later construction of this Act indicates that it created a right not previously known at common law. Fennyery v. Ransom, 170 Mass. 303, 49 N.E. 620 (1898). It has not given rise to the difficulties about deficiency suits found in England. See note 6 above; compare Ely v. Ely, 6 Gray (Mass.) 439 (1856). By Act of 1818, now Mass. G.L., c. 244, §36, it was provided that a mortgagor could recover a surplus in an action at law. Presumably at common law any surplus was a windfall to the mortgagee. Thus, the mortgagor could not ordinarily open the foreclosure merely because of a surplus. See John J. Powell, Mortgages 457–461 (London, 1st edn., 1785).
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/