87 Me. 441 | Me. | 1895
Trespass quare clausum upon a parcel of land which had been assigned to Lucinda H. Field, as her dower in the farm of Cyrus Field. Plaintiff acquired title to this parcel
The case shows that defendant took to himself a deed of release of dower, without covenants, from Lucinda. H. Field on September 13, 1890. At that date her dower had not been assigned, and defendant had no interest then or afterward in the Cyrus Field farm, to which the dower interest attached. Her deed, therefore, conveyed nothing; and the jury was so instructed. Johnson v. Shields, 32 Maine, 424.
If the deed from Lucinda to the defendant had conveyed title, no question of lien could have arisen. The futile attempt to obtaiu the dower title, under the alleged arrangement with plaintiff, did not create an equitable lien upon the land afterward assigned to the widow' as her dower against the plaintiff, who acquired legal title from her after the assignment. Taking her release without covenants, failure to obtain title thereunder, did not furnish defendant cause of action to recover the money paid, in the absence of fraud. Soper v. Stevens, 14 Maine, 133. Equity will not accomplish an opposite result through an equitable lien, against the widow, or her grantee.
If defendant had procured a release of dower to the plaintiff, at his request, he might have had a lien upon the land for his advances, as wTas held in Perry v. Board of Missions, 102 N. Y. 99. But he purchased in his own name with his own money, and took a release to himself, which failed to transfer either legal or equitable title, and no equity exists to afford him a lien upon the after acquired legal title of the plaintiff.
But if an equitable lien had existed, the instruction excepted to was too broad. Such liens are neither a jus ad rem, nor a jus in re, but a right of a special nature over the thing, w'hich may, by proper process, be sold or sequestered under a judicial decree, and the proceeds in the one case, or the rents and profits in the other, applied upon the demand of the party holding the lien. But such party is not entitled to possession of the thing, nor to the rents and profits, except under a judicial decree. This is a distinguishing feature between equitable and legal liens. Pomeroy's Equity, § 1233; Bruce v. Duchess of Marlborough, 2 P. Wms. 491; Knott ex parte, 11 Vesey, 609, 617. The holder of such lien could not justify under it the acts complained of in this suit.
Exceptions sustained.