111 Me. 193 | Me. | 1913
The question involved in this case is whether under the statutes of this State a judgment creditor who has received a
In our opinion he cannot.
The statute provisions are as follows:
“Persons seized or having a right of entry into real estate in fee simple or for life, as tenants in common or joint tenants, may be compelled to divide the same by writ of partition at common law.” R. S., chap. 90, sec. 1.
“Persons so entitled, and those in possession or having a right of entry for a term of years, as tenants in common, may present a petition to the Supreme Judicial Court held in the County where such estate is,” etc. R. S., chap. 90, sec. 2.
Section one covers the now almost obsolete common law writ of partition, while section two, provides for the customary petition for partition, such as is employed in this case.
Taking this language at its full dimension and without modification it might seem sufficiently broad to cover the pending case, because as between the parties seizin is transferred by levy, Woodman v. Bodfish, 25 Maine, 317; Clark v. Pratt, 55 Maine, 546; and the creditor may treat the debtor as disseizor at his election and maintain a writ of entry, Bryant v. Tucker, 19 Maine, 383; Burnham v. Howard, 31 Maine, 569, and an execution sale by the sheriff has the same legal effect as a levy, R. S., chap. 78, sec. 32-36.
But this broad meaning is modified by R. S., chap. 90, sec. 28, which reads: “A person having a mortgage, attachment or other lien, on the share in common of a part owner, shall be concluded by the judgment, so far as it respects the partition, but the mortgage or lien remains in force on the part assigned or left to such part owner.” This section first appeared in the Revision of 1841, chap. 121, sec. 38.
Taking this section in connection with sections one and two, first quoted, the intention of the Legislature is clear, namely that the rights of partition belong to the holder of the equity of redemption in case of a mortgage and to the debtor in case of an attachment or execution sale, until, in the one case, the title in the mortgage is rendered indefeasible by perfected foreclosure and, in the other, in
As between mortgagor and mortgagee the title passes to the mortgagee, and yet the mortgagor may maintain a real action against all parties except the mortgagee and those claiming under him. Huckins v. Straw, 34 Maine, 166; Stinson v. Ross, 51 Maine, 556. The mortgage is regarded as security for the debt and until the title has become indefeasible by expiration of the time for redemption, the mortgagor is, to all intents and purposes, the owner of the property and so seized of the estate as to enable him to convey it or to maintain a real action, counting on his own seizin, Wellington v. Gale, 7 Mass., 138. His interest is subject to attachment, as real estate, and the mortgagee’s interest passes upon his death, not to his heirs or devisees, but to his executor or administrator.
It was therefore held, even prior to the enactment of R. S., 1841, chap. 121, sec. 38, that a mortgagor before foreclosure could maintain a petition for partition, Upham v. Bradley, 17 Maine, 423, but not after the mortgagee had entered for condition broken, Call v. Barker, 12 Maine, 320.
In like manner the attachment of real estate is simply security for the debt and a levy or execution sale is but another step in perfecting the security. The debtor can redeem at any time before the expiration of the year, and until that time, he is regarded as the owner of the estate. The estate remains as a pledge, and by the statute that pledge attaches to the moiety in case of partition, instead of to the undivided interest.
In Massachusetts, under a statute giving the right of maintaining a petition for partition to “any person who has an estate in possession” it was held in Ewer v. Hobbs, 5 Met., i,that the mortgagee, before perfected foreclosure, could not maintain a petition against the holders of other mortgages given at the same time. In the course of the opinion Chief Justice Shaw says: “Before fore
In Phelps v. Palmer, 15 Gray, 499, the precise question that we are considering was raised, and the court held that the petition could not be maintained by a judgment creditor holding under a levy until the year of redemption had expired and the redeemable, defeasible and fluctuating interest had become fixed. After discussing the reasoning in Ewer v. Hobbs, supra, the court continues:
“We think these objections strongly apply to the case of a judgment creditor who has levied on the real estate of his debtor, and who, before the debtor’s right of redemption has expired, seeks to have partition made between himself and a person holding as tenant in common with his debtor.
“The estate of the petitioners was certainly a defeasible estate fof the period of one year after the leyy. The proceedings, if pending, might at any stage of the case be arrested and defeated by the debtor’s redeeming the .estate, and this without any act on the part of the petitioner. The interest of the creditor in a title acquired by levy is a qualified title, the statute reserving to the debtor a right to redeem within one year, which right should be preserved to him in an unimpaired and unembarrassed state. It Is true that the levy
“In the opinion of the court, the right to maintain such petition for partition does not attach to a levy by a judgment creditor on the real estate of his debtor, until the estate becomes absolute in the creditor by the neglect of the debtor to redeem the same within one year from the date of such levy.”
See also Newton Bank v. Hall, 10 Allen, 144; Norcross v. Norcross, 105 Mass., 265, and note to Nichols v. Nichols, 28 Vt., 228, in 67 Am. Dec. 699 at p. 708.
The doctrine of these cases is founded on reason and workable in its application and we adopt it as the rule in this State.
Exceptions overruled.
