Linscott v. Weeks, 72 Me. 506

Linscott v. Weeks

72 Me. 506 | Me. | 1881

Walton, J.

We think it is clear that upon the facts reported by the referee, and agreed upon by the parties, the plaintiff is entitled to judgment. As assignee of the mortgage from Timothy A. Pendexter to Samuel Pendexter,Ais title to the barn in controversy is superior to that of the defendants, who claim title to it by a subsequent purchase from the mortgagor. The mortgagor could give no title which would impair that of his mortgagee. So far as appears, the mortgagee had done nothing to impair his title. The case finds that he knew of the sale of the barn by the mortgagor, but it does not appear that he assented to the sale. Knowledge, without consent, would not impair his title. Having, *509so far as appears, a good title himself, no reason is perceived why he could not convey a good title to whomsoever he pleased - — to the plaintiff as well as to any one else. There are no facts reported which would operate as an estoppel upon the plaintiff thus to obtain and assert a title to the barn. True, be accepted a deed from the mortgagor in which the barn was reserved. But that would not prevent him from afterward obtaining a title to it from another and an independent source. Allowing the mortgagor to reserve it would not expressly or impliedly amount to a covenant on the part of the plaintiff that he would never become the owner of it. Nor do we think it would estop him from becoming the owner of it by purchase of the mortgagee’s title./ Nor are there any facts reported to justify the conclusion that the plaintiff was under an obligation to pay the mortgage debt, so that his purchase of the mortgage would operate as a discharge of it. The plaintiff’s title is, of course, a conditional one. It is a mortgagee’s title, which he has obtained by a purchase of the mortgage, and by taking an assignment of it to himself. But that is a title superior to that of the defendants, and is sufficient to maintain the action, there having been no redemption of the mortgage.

Judgment for plaintiff for twenty dollars damages, and costs, as awarded by the referee.

Appleton, C. J., Barrows, Virgin, Lxbbey and Symonds, JJ., concurred.