77 Me. 270 | Me. | 1885
October 7, 1847, Stephen P. Moody and Thomas T. Moody, having title to the premises in dispute, conveyed them in mortgage to Jacob Moody. There was a breach of the condition and January 16, 1856, Jacob recovered judgment as of mortgage, upon which a writ of possession was issued March 31, 1856. Before that writ was served Jacob conveyed the premises, by deed of warranty dated May 13, 1856, to John Payne who died October 8, 1857. His widow conveyed her interest to Thomas P. Moody, May 14, 1880, and Mary Payne, the widow of Miller, a son of John and Virginia, the sole surviving heir of John, conveyed their interest to the same grantee by quit claim deed dated February 3, 1883. The plaintiff claims by deed of warranty from Thomas P. Moody.
Thus it appears that the plaintiff traces his title through mesne conveyances to the mortgage of Stephen P. and Thomas T.
This act was not complied with in this case. That it is material and its omission fatal, when applicable is settled in Hatch v. Bates, 54 Maine, 136-141. That by its terms it is applicable in this case there can be no doubt. It was in force before the attempted foreclosure, is general in its provisions and makes no exception of mortgages previously executed. It is however, claimed that as it was not in force at the date of the mortgage, if applied it is unconstitutional as impairing the obligation of a contract.
That there is a distinction between the contract and the remedy is too well settled to need discussion. That this act relates to the remedy would seem to be equally clear. It in no respect alters or modifies a single provision of the contract. In its terms it remains the same as before. It only provides for a single step in the particular process resorted to for enforcing its obligations. True there are cases where an alteration of the remedy has been held to be within the constitutional prohibition.
It is, however, claimed that the right of redemption was barred by lapse of time, which, under a certain state of facts, might occur. So a lapse of time of sufficient length would raise a presumption of payment. But both these facts can not exist in relation to the same mortgage at the same time. Whether the one or the other will prevail, must depend upon the possession. If the mortgagor were in possession for twenty years after the debt became payable, the presumption of payment would follow. Perhaps the same result might follow if the mortgagee were not in possession. But if the mortgagee were in possession for the same length of time, there would be a presumption of foreclosure. Prom the report in this case, it appears that at the attempted ■service of the writ of possession, one of the mortgagors was in possession, and at that time, with perhaps some doubt and uncertainty, Payne, then the assignee of the mortgage, was put into possession. But it appears that the mortgagor was not ousted, that he did not become the tenant of Payne, or in any way agree to hold the premises for him, and that Payne, instead
But it is claimed that the possession of the mortgagor is that of the mortgagee. If this were true without qualification, the presumption of payment could seldom, if ever, arise. While it may be true in some cases and for some purposes, it is not so for others. A mortgagor in possession is undoubtedly bound in the exercise of good faith under his contract to hold the property in accordance with that contract, and preserve the property as security for the debt, with all due subjection- and regard to the rights and interests of the mortgagee. So far, his possession-is the possession of the mortgagee, and no farther. When it comes to the foreclosure, it is another matter. This to be sure, is a right which accrues to the mortgagee from the mortgage, but it is a right which he may exercise or omit .at his option. If he chooses to put it in force, he does so by himself, or by his authority, and in doing it, he becomes antagonistic to the mortgagor. The mortgagor has no duty to perform in this respect, and herein their relations become such that the possession of the one is not the possession of the other, but antagonistic to it. It is true that the mortgagor may assume new relations to the mortgagee; he may become his tenant, as any other person might; he maj' agree to hold the property under and in subordination to the control of the mortgagee. Then his possession would, in respect to the foreclosure-, become the possession of the mortgagee. But this would be by virtue of a newcontract; one outside of and in addition to that evidenced by the mortgage. No such contract, but the opposite, is shown by the report in this case.
If the mortgage had been paid, then Payne’s heirs could derive-no title to the premises. If it Inis not been paid, his attempted! foreclosure, as we have seen, being ineffectual, it would become-assets in the hands of his administrator. His estate was represented insolvent and proved to be so. As the creditors had the-prior right after the widow’s allowance, it was the duty of the administrator to appropriate it to the widow, or creditors, or-both. The title was in him for this purpose, and the heirs or ■widow could convey no title. Thus the plaintiff’s title, coming from the widow and heirs, failing, it is unnecessary to examine-that of the defendants.
Judgment for the defendants.