57 Me. 388 | Me. | 1869
This case was submitted to the determination of the presiding judge, each party reserving the right to except. The presiding judge ordered judgment for the plaintiffs, and the defendant excepts.
1. The defendant contends that the action is improperly brought in the name of the receivers; that it should have been commenced in the name of the bank. We hold otherwise. The object of the suit is to obtain possession of tbe real estate in question for tbe receivers, and not for the bank. A suit in the name of the bank would not accomplish that purpose; for the execution, or writ of possession, if one was obtained, would require the officer executing it, to put the hank, and not the receivers, into possession. As it is the receivers that are seeking to obtain possession, we think the suit is properly brought in their names. It is the direct road to the end in view. A .suit in the name of the bank would be circuitous, and result doubtful.
2. The defendant contends that the action was prematurely brought; that it should not have been commenced till the expiration of the year within which he had a right to redeem. We think otherwise. We understand the law to be well settled, that when real estate is legally levied on, the creditor may forthwith maintain a real action, or an action of trespass even, against the debtor, if he
3. The defendant contends that the plaintiffs have no right to go into possession of the real estate of the bank; that their only power is to sell it. We think the law is otherwise. We think it was not only the right, but the duty of the receivers, to take immediate possession of all the real as well as the personal estate of the bank; and to commence suits if necessary to obtain such possession. R. S.,c. 47, §64.
4. The defendant contends farther that this process will not lie, because the defendant was never tenant to the plaintiffs. It is not necessary that he should have been their tenant. The law now allows such process to be commenced against a disseisor. R. S., c. 94, § 1.
6. The exceptions state that all the evidence introduced by the plaintiffs was objected to by the defendant, but no specific objection appears to have been made to any of it. We think the objection was properly overruled. So far as we are able to discover, the evidence was not only legally admissible, but essential to the maintenance of the suit, except, perhaps, that portion of it which relates to the defendant’s bankruptcy. That was wholly immaterial, and could not have changed the result. Exceptions overruled.
J%dgment for plaintiffs.