Opinion
March 31, 1966.
Bernard P. Rome Ernest L. Ackley, III, for the defendants, submitted a brief.
Thomas D. Burns for the plaintiff.
The plaintiff mortgagee prevailed in the District Court, and, on appeal by the defendant mortgagors, in the Superior Court, in summary process to obtain possession of premises purchased by the plaintiff at a foreclosure sale. All of the defendants' exceptions concern the judge's rulings that the issue of the plaintiff's want of good faith when it took title at the foreclosure sale is not relevant in summary process. The judge was right. The purpose of summary process is to enable the holder of the legal title to gain possession of premises wrongfully withheld. Right to possession must be shown and legal title may be put in issue. Sheehan Constr. Co. v. Dudley, 299 Mass. 51, 53. Legal title is established in summary process by proof that the title was acquired strictly according to the power of sale provided in the mortgage; and that alone is subject to challenge. If there are other grounds to set aside the foreclosure the defendants must seek affirmative relief in equity. New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 195, 196. The rule applies here. The issue of lack of good faith is not available to a defendant in summary process.
Exceptions overruled.