106 Me. 205 | Me. | 1909
Bill in equity to redeem certain real estate from an alleged equitable mortgage. The case is before this court on report for the determination of the question submitted by the referee, whose report, so far as material to the question presented, is as follows: "Mary S. Kenney on March 14th, 1887, conveyed to Samuel D. Leavitt by warranty deed absolute in form the real estate described in paragraph one of the bill and in the copy of deed, Exhibit ‘A’, annexed to the bill. This conveyance^ though
"The hotel cost more than was anticipated and the business did not prove profitable. Mrs. Kenney and her husband, who was running the hotel with a partner, left the hotel, and it was after-wards verbally arranged between them and Leavitt and the bank that the bank should retain the land in full payment for the loans. A bond for reconveyance given by Mr. Leavitt to Mrs. Kenney at the time of her deed, but which had never been recorded, was given back to Mr. Leavitt in pursuance of the arrangement thus made. This was in 1894. Since that time until this proceeding was begun, August 1907, neither Mrs. Kenney nor any one claiming under her has made to the bank any claim of any right to redeem the land as from a mortgage, nor has the bank or Leavitt made any claim for repayment of the loans, and there was no evidence that they held any notes or other evidence of indebtedness for such loans. The bank upon its books transferred the matter from its loan account to its real estate account after the death of Mrs. Kenney in 1895. There does not appear to have been any written release of any equity of redemption, nor was there any statutory foreclosure of such right, if any. The plaintiff has succeeded to all rights of redemption, if any.
"I submit to the court the question whether upon the above statement of facts there is a subsisting right of redemption from the deed of Mary S. Kenney of March 14, 1887. If the court should hold the right to have been extinguished, then the bill is to be dismissed without costs. If the court holds the right to still exist, then the bill is to be sustained against the bank for redemption of the land described in paragraph one, and in the copy of deed, Exhibit ‘A’, annexed to the bill, but no other land, and a master is to be appointed to state the account.”
While it is a well settled principle that a mortgagor will not be
In Watson v. Edwards, supra, it is said: "Appellant contends that he should have had judgment because the original transaction between Sullivan and Clark was, in law, a mortgage, and that its character as a mortgage was not changed, and could not have been changed, by the subsequent acts, of a surrender of the defeasance,
"The old and oft-quoted legal maxim, ‘once a mortgage always a mortgage,’ is undoubtedly to be read and considered with this limitation, ‘Once a mortgage always a mortgage until the parties agree to'treat it differently.’ But when they agree to treat it differently and do so treat it, it loses its character as a mortgage.” Richmond v. Richmond, supra. In the quite recent case of Ferguson v. Boyd, supra, the court said: "When the legal title is in the mortgagee, so that it becomes necessary for the mortgagor to assert his claim of redemption on th.e equity side of the court, it does not admit of doubt that he must submit his claim to the tésting of equity principles. His right of redemption may subsequently be lost to him by a fair contract which he has voluntarily entered into for the surrender of such right, or it may be defeated by other facts, which upon a consideration of the equities of the whole case, render it inequitable to accord to him the privilege he seeks.”
In the case before us the referee has found as a fact, that after seven years from the time of the original transaction, which was in effect a mortgage, the parties mutually agreed that the bank should retain the land "as full payment for the loans, ” and in pursuance of that agreement the bond for reconveyance was surrendered.
It must be assumed, from the referee’s finding, that this subsequent agreement was made, and the bond surrendered, with the intent to vest the estate unconditionally in the grantee of the original deed; that the agreement was voluntary on the part of the mortgagor, and was fair, honest, and not procured by fraud or
Applying the well established doctrine hereinbefore mentioned to the facts as found by the referee and the conclusion necessarily follows, we think, that the right of redemption from the deed of Mary S. Kenney of March 14, 1887 was extinguished by the subsequent agreement of the parties, and is no longer a subsisting right.
Therefore in accordance with the provision of the referee’s report the entry must be,
Bill dismissed without costs.