What is the legal authority that Massachusetts is a title theory state for real estate purposes?

Answer 1

Massachusetts evolved as a title theory state through the common law. In a title theory state a mortgage is considered to be a conveyance in fee which is defeasible if certain conditions are met. The language in the mortgage prevents the mortgagee from taking possession of the property unless there is a defalt.

The relationship between a mortgagor and mortgagee has been more recently stated in Pineo v White, 320 Mass. 487, 70 N.E.2d 294 (1946) and in Perry v Miller, 330 Mass. 261, 112 N.E.2d 805 (1953).

That a mortgage is a conveyance is further defined in the statutes: Chapter 183: Section 18. Mortgage deeds Section 18. A deed in substance following the form entitled Mortgage Deed shall when duly executed have the force and effect of a mortgage deed to the use of the mortgagee and his heirs and assigns with mortgage covenants and upon the statutory condition and with the statutory power of sale, as defined in the three following sections, to secure the payment of the money or the performance of any obligation therein specified. The parties may insert in such mortgage any other lawful agreement or condition.

Chapter 183: Section 19. Mortgage covenants: In a conveyance of real estate the words mortgage covenants shall have the full force, meaning and effect of the following words, and shall be applied and construed accordingly: The mortgagor, for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons; and that the mortgagor and his heirs, successors or assigns, in case a sale shall be made under the power of sale, will, upon request, execute, acknowledge and deliver to the purchaser or purchasers a deed or deeds of release confirming such sale; and that the mortgagee and his heirs, executors, administrators, successors and assigns are appointed and constituted the attorney or attorneys irrevocable of the said mortgagor to execute and deliver to the said purchaser a full transfer of all policies of insurance on the buildings upon the land covered by the mortgage at the time of such salee.

Chapter 183: Section 20: Statutory condition in mortgages: The following condition shall be known as the Statutory Conditions, and may be incorporated in any mortgage by reference: (CONDITION.) Provided, nevertheless, except as otherwise specifically stated in the mortgage, that if the mortgagor, or his heirs, executors, administrators, successors or assigns shall pay unto the mortgagee or his executors, administrators or assigns the principal and interest secured by the mortgage, and shall perform any obligation secured at the time provided in the note, mortgage or other instrument or any extension thereof, and shall perform the condition of any prior mortgage, and until such payment and performance shall pay when due and payable all taxes, charges and assessments to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein or on the debt or obligation secured thereby; shall keep the buildings on said premises insured against fire in a sum not less than the amount secured by the mortgage or as otherwise provided therein for insurance for the benefit of the mortgagee and his executors, administrators and assigns, in such form and at such insurance offices as they shall approve, and, at least two days before the expiration of any policy on said premises, shall deliver to him or them a new and sufficient policy to take the place of the one so expiring, and shall not commit or suffer any strip or waste of the mortgaged premises or any breach of any covenant contained in the mortgage or in any prior mortgage, then the mortgage deed, as also the mortgage note or notes, shall be void.