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Massachusetts Agencies

Revival of Mortgage


For whatever it may be worth, and in connection with the foregoing claim involving the theory of revival of a mortgage, you may wish to use as authority Eno and Hovey, Massachusetts Practice - Real Estate Law with Forms, West Publishing Co., (Third Edition, 1995), §10.17, wherein the authors, in citing Huzzey v. Heffernan, 143 Mass. 232, 9 N.E. 570 (1887), say this:

If a mortgage excepted a first mortgage by making a second mortgage specifically subject to the first mortgage, the second mortgage is not revived. Huzzey v. Heffernan, 143 Mass. 232, 9 N.E. 570 (1887). In this case, the mortgage was on the former form that warranted against all claims exceptthe first mortgage. The result should be no different under the present form reciting that the second mortgage is subject to the first mortgage.

The rule in Huzzey is another example of the court seizing on an opportunity to limit the effects of the doctrine of estoppel by deed. That doctrine essentially states that where one has made a conveyance with warranty covenants (and a mortgage is a warranty deed with a defeasance clause) the later acquisition (or in the case of revival, the reacquisition) of the title will inure to the grantee under the conveyance.