112 Me. 238 | Me. | 1914
This is a petition for a review of a real action in which the present defendants, Kimball and Coffin, were plaintiffs and one George B. Dorr was defendant, and comes before this court on report. That case was tried and went to judgment at the April term, 1913, of the Supreme Judicial Court in Hancock County. It is admitted that during the pendency of that action and before trial or judgment, the record title of Dorr, the defendant, passed to the Bar Harbor Water Company, and that the title of Kimball and Coffin, the plaintiffs, had been bought and paid for by the Bar Harbor Water Company and had been conveyed to a trustee for the benefit of that company. So that the Water Company at the time of the trial owned in law, or in equity, all the title of all the parties of record in the suit. • It is also admitted that the suit was prosecuted to judgment by that company, at its expense; and inasmuch as it owned also the defendant’s title, it is a fair inference that the same company maintained the defense. Except as the judgment might furnish the basis for ulterior proceedings against this present petitioner, it was entirely a moot case.
It will be noticed that the petitioner was not a party of record in the original suit, and that Dorr, who was a party there, is not made a party to this proceeding. For her right to institute the proceeding, the petitioner relies upon R. S., Chap. 91, Sec. 1, cl, III, which provides that a review in civil actions may be granted “on petition of a party in interest who was not a party to the record, setting forth the fact of such interest, and upon filing a bond,” and so forth. The petitioner’s right to petition is not challenged, but we deem it proper to say that we think that her case fairly comes within the provision of the statute. It is probable that by strict construction the original defendant, Dorr, should have been made a party to this proceeding, but the point has not been made. And as he, as well as his former adversaries, are represented by the Bar Harbor Water Company, their grantee, which is making this defense, and makes no point of want of proper parties, we will pass the question. We merely mention the situation that it may not serve as a precedent.
It should be stated further as preliminary to a discussion of the questions involved, that the Bar Harbor Water Company, the present defendant in interest, has commenced an action against the petitioner as heir, upon her father’s covenant of warranty, and the action is now pending.
A review may be granted “where through fraud, accident, mistake or misfortune, justice has not been done.” R. S., Chap. 91, Sec. 1, cl. VII. But the words “fraud, accident, mistake or misfortune” are not without limitation. This court said in Pickering v. Cassidy, 93 Maine, 139, that “the words ordinarily import something outside of the petitioner’s own control, or at least something which a reasonably prudent man would not be expected to guard against or provide for. It has long been regarded as essential to public order, security and confidence that when parties have had their full day in court .... they should abide the result. ... It cannot have been the intention of the legislature to destroy this rule and destroy all reliance upon court judgments by requiring or even
The petitioner was seasonably vouched to defend. She then had in her possession all the evidence that she has now, for want of which, as she claims, an erroneous order of judgment was made. She showed it to her personal counsel. She furnished copies of it to the counsel defending the Dorr title. She says she was advised by her attorney that it was not necessary for her to respond to the voucher and that the attorneys for Dorr had told her attorney that they would do all they could in defense. If we should assume that the attorney did not give her good advice, as we do not, that would not be such mistake or misfortune as the statute contemplates. The statute certainly does not mean that when a lawyer gives poor advice it is a cause for review. But the record leads us to think that disinclination to be at any expense about it was the prime reason for failing to appear and defend. Notwithstanding the advice which she says was given her, she undertook to employ a firm of Ellsworth attorneys, but being unable to get them to name a price for which they would take care of the suit for her, she seems to have decided to let the matter go. For these reasons we might properly hold, we think, that the failure of the petitioner to act after being vouched was due to her own personal, palpable, neglect, for which the statute of reviews affords no remedy. But there are reasons why we think it proper to consider the case on its merits, and we will do so. The same result will be reached, either way.
The case shows that the land in question was once owned by Randall S. Clark. On January 8, 1855, he conveyed it to Charles Goodwin and George N. Severance. On the same day, Goodwin and Severance mortgaged it to Andrew H. Hall to secure the payment of three notes aggregating $2500. The deed of conveyance and mortgage were both recorded January 12, 1855. Hall assigned the mortgage to Sarah H. Gilmore, March 26, 1858, and the assignment was recorded May 23, 1859. On May 18, 1863, J. A. Deane, by an assignment purporting to be made by him as attorney for Sarah H. Gilmore, assigned the mortgage to William A. Farnsworth, Henry
It appears then that in May, 1863, Goodwin and Severance were mortgagors and owned the equity of redemption. William A. Farnsworth, — and we need speak only of him, — was the mortgagee, or had the interest of a mortgagee. His associates by conveyance drop out of the case. Afterwards, in 1865 and 1868, it is said, and having no other title than that of mortgagee, Mr. Farnsworth gave warranty deeds of the land to two persons. At the commencement of the action in the caste of Kimball and Coffin against Dorr, it is admitted that the plaintiffs, by mesne conveyances, held the title of Goodwin and Severance, mortgagors, the defendant, Dorr, held the title, such as it was, of the grantees in the warranty deeds of Farnsworth, and, as we shall see presently, the petitioner’s rights were those of the mortgagee.
The petitioner’s contention is based upon the claim that the chain of conveyances from the warranty deeds of Farnsworth down to Dorr gave the latter some title, namely, the mortgage title of Farnsworth. And upon this assumption she urges that if the mortgage deed and notes had been offered in evidence in the original action of Kimball and Coffin v. Dorr, they would have disclosed the defendant’s mortgage title, and have furnished at least an equitable defense to the action, on the ground that a real action by the owner of the equity of redemption will not lie against the mortgagee or one having the interest of a mortgagee. • Woods v. Woods, 66 Maine, 206; Rowell v. Mitchell, 68 Maine, 21.
It is very evident that when Mr. Farnsworth gave these warranty deeds he did not transfer the mortgage indebtedness. He died in 1876. After this controversy arose, not only the original mortgage, but also two of the mortgage notes, and an execution issued on a judgment on the third note were found by this petitioner among her father’s papers. They apparently belong to his estate, of which she is the administratrix de bonis non. Nor is there any evidence that Mr. Farnsworth had made entry, and was in possession when he gave the deeds. The petitioner argues repeatedly that such was the fact, but the record does not show it. It shows on the contrary that efforts were made to ascertain whether Farnsworth had ever been in possession, and that the efforts were unavailing. The only thing in the case about possession is an admission in.these words: — ‘ ‘It is also admitted that said land is and always has -been wholly uncultivated, that it has never been fenced nor built upon, that the only use ever made of it has been an occasional cutting of wood, and that it has never been used as a wood lot belonging to a farm, and that there is now nothing upon it except a growth of wood.” And here the cutting of wood is the only thing that relates to the question. It does not state when it was cut nor by whom. Surely here is not enough to warrant a finding that Farnsworth ever cut any wood, nor that he had ever been in possession.
The petitioner suggests as a reason why she ought to have a review granted, that she is endeavoring to foreclose the mortgage, and wishes to be able before the case' is again tried to effect a foreclosure, so that the title thereby effected will enure to the benefit of the grantees under her father’s warranty. It hardly need be said that this does not furnish legal ground for a review. To speak of only one contingency. If she has a right to foreclose, the present owner
To repeat. We think the petitioner has stated no ground that would serve as a defense if a review should be granted. It will therefore be useless to grant one.
Petition denied with costs.