Cushing v. Thompson

34 Me. 496 | Me. | 1852

Tenney, J.

The defendant levied his execution upon the complainant’s right in equity of redemption of the premises described in the bill on Sept. 4, 1849. On August 21, 1850, the complainant, desirous of redeeming the interest, upon which the levy was made, called upon the defendant, to render a true account of the sum due for such redemption. The defendant had not actual possession of the premises and had received no rents and profits therefrom. On the 22d of August, 1850, he sent to the complainant an account in writing of the sum claimed for the redemption, being the sum, for which the right was sold with interest thereon from the time of the sale. This bill was filed on August 27, 1850, and notice thereof served upon the defendant, on August 29, 1850.

By R. S. c. 94, § 25, 26, 27 and 28, the modes of redeeming from a levy of an execution by the debtor are provided. But it is necessary, that the sum should be tendered, or so ascertained, that there is an opportunity to receive it within the year, in order, that the redemption may be effected. Boothby v. Com. Bank, 30 Maine, 361. In the case before us, no tender was made, and no course pursued, which has resulted in a determination of the sum due for redemption.

But it is insisted, that in March, 1850, the defendant actually received money, which should be applied so far as was necessary to redeem the interest, which was sold on the defendant’s execution. After the levy, the defendant effected insurance upon his interest to the amount of $850. And on Dec. 1, 1849, the buildings on the premises were destroyed by fire, and payment of the amount for which they were insured, was made in March, 1850.

The interest insured was that of the defendant alone. It does not appear, that the complainant paid any part of the premium, had any connection with the insurance, or knew of its existence, till the loss of the property. The defendant could not have compelled payment from the complainant of the premium or any part of it. It is well settled, that a contract of insurance does not run with the estate, as incident thereto, but is an agreement with the underwriters against a loss, which the assured may sustain, and not the loss, which another may be subjected to, having an interest as mortgager, redemptioner, or otherwise. Adams v. Rockingham Ins. Co. 29 Maine, 292 ; White v. Brown & als. 2 Cush. 412.

Unless the defendant was accountable for the full amount' for which the equity sold, within a year after the levy, as rents and profits, which is not insisted on, the relief prayed for cannot be granted. Bill dismissed with costs.