Attributes: Tenancy: Type of Property
- Generally, a mortgage to two persons, unlike a deed, is held by the mortgagees in joint tenancy. See G.L.c. 184, §7. The exceptions to this rule are these:
If the mortgage states otherwise (e.g., tenants in common), the mortgagees will hold under the tenancy so specified.
If the mortgage is a true purchase money mortgage (one back to the sellers) and the sellers had previously held the title with another person under a tenancy other than a joint tenancy, the mortgagees (financing sellers) will hold the mortgage in the manner in which title was held between them under the deed before the conveyance. This is the rule announced in Park v. Parker, 216 Mass 405 (1914) and mentioned in Bertolami v. Corsi, 27 Mass.App.Ct. 1132 (1989).
- A mortgage, like other personal property, vests in the personal representative and needs to be assigned to the heirs or legatees, as the case may be. Likewise, it is the personal representative – and not the heirs or devisees – who should give a discharge if the mortgage has not been assigned to them. See Newhall, Settlement of Estates and Fiduciary Law in Massachusetts, Lawyers Cooperative Publishing Company (Fifth Edition, 1994), §9.13, copy of which is enclosed.