24 Me. 383 | Me. | 1844
The opinion of the Court was by
The ancestor to the plaintiffs purchased of the defendant, by deed- of general warranty, a farm in Sangerville, in this State, which the defendant had before mortgaged to one Sanger. The ancestor of the plaintiffs died in 1821, leaving the plaintiffs, his children and heirs, who entered into and became seized and possessed of the farm; and, in 1826, were evicted therefrom, by reason of the elder and better title thereto, held under said mortgage. . The plaintiffs, in their writ and declaration, have set forth specially the elder and better title by which they have been ousted; at the same time calling it an incumbrance. This is . at variance with the ordinary mode of declaring in case of an eviction; and we are unable to conclude that the declaration upon that ground is sufficient. If it were the plaintiffs might recover.
A mortgage is an incumbrance, and, at the same time, an outstanding title, defeasible upon the performance of certain