92 Me. 483 | Me. | 1899
One Ira W. Page being the owner of certain land conveyed the same in fee to Lawrence Williams then alive, but now dead. At the same time Williams gave Page a writing, not under seal, agreeing, among other things, that if Page should pay him fifteen dollars a month until he shall have paid $1500 with interest, that he, Williams, would reconvey the land. The writing contained a stipulation that Page might occupy the premises so long as he fulfilled his part of the agreement, but that upon breach of any part of it he should forfeit all right to the land and money paid on account of it as well.
It appears that Page was owing $1500 secured on the land; that he applied to Williams for a loan of that amount on a mortgage, but that Williams said “he was not in the habit of taking mortgages on property at all; he would rather not if he could fix it in some other way ”; thereupon he advanced the money, took a warrantee deed of the property and gave back the writing before mentioned. “A legal mortgage was avoided; an equitable mortgage was made.” “If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage.” Flagg v. Mann, 2 Sum. 533; Stinchfield v. Milliken, 71 Maine, 567. “Equity deals with the substance of things regardless of form or methods.” Gray v. Jordan, 87 Maine, 140; Libby v. Clark, 88 Maine, 32.
II. Revised Statutes, c. 90, § 12, provides: “Lands mortgaged to secure the payment of debts, or the performance of any collateral engagement, and the debts so secured, are on the death of the
No good reason appears why the above statute should not apply to equitable mortgages as well as to legal mortgages. They are both security. In neither one is the title absolute in the mortgagee. They are both subject to redemption and foreclosure. In substance, they more nearly represent money than land. Redemption turns them into money. Foreclosure of a legal mortgage produces a fee, while foreclosure of an equitable mortgage, which is sometimes by sale, yields money. Indeed, the equitable mortgage is more nearly akin to money than a legal mortgage, when its nature is fairly considered. We think the statute applies to “lands mortgaged,” just as it reads; whether they are mortgaged in equity or in law, and that such mortgages are assets in the settlement of estates of deceased persons to be applied and distributed as personal estate.
III. Mortgages are assets, and mortgage debts are credits. The latter should be included in the inventory of estates of deceased persons and charged to the executor or administrator like all personal estate, and until redemption has expired, they hold the land “ in trust for the persons who would be entitled to the money if paid,” but if not paid, they may sell the debt and mortgage as personal estate and assign both. R. S., c. 65, § 32. “Any such real estate may, for the payment of debts, legacies or charges of administration, be sold by a license of the probate court like personal estate.” Sec. 33. If neither redeemed nor sold “it shall be distributed among those who are entitled to the personal estate, but in the manner provided in this chapter for the partition of real estate; or the judge of probate or the supreme court may order it sold by the executor or administrator, and the money received distributed as personal estate. Sec. 35. But, if tbe mortgage be
In the case at bar, Page redeemed the land and paid the money to the administrator of the mortgagee, who claimed to receive it as agent for the heirs of whom he was one, and omitted to charge himself with it as assets of the estate as he should have done. The plaintiff brings this bill, as administrator de bonis non of the widow of the deceased, to collect her moiety of the heirs who have received the money. His remedy is in the probate court, where such matters are heard and determined. He sues for a distributive share of an estate. Such action does not lie before the amount to be distributed has been ascertained in the probate court. The case of Graffam v. Ray, 91 Maine, 234, is in point. There the residuary legatee sued the administrator'for devastavit. The doctrine of the case is that all distributive shares must be determined in the probate court, before they become payable to the distribu
Bill dismissed.