44 Me. 286 | Me. | 1857
A mortgage is a conditional conveyance of land, designed as a security for the payment of money, the fulfillment of some contract or the performance of some act, and to be void upon such payment, fulfillment or performance. To constitute a mortgage it is not necessary that there should be any collateral or personal security for the debt secured by the mortgage. Smith v. Peoples’ Bank, 24 Maine R., 185. The deed, Benjamin H. Harnden to Benja
It appears that Benjamin Harnden brought a writ of entry upon this mortgage, and recovered judgment thereon on the second Tuesday of October, 1851, upon which, subsequently, a writ of possession issued, under which an entry was made by him on the premises sought in this bill to be redeemed. After the rendition of judgment, and entry under the writ of possession, the mortgagee on the 2d of May, 1853, conveyed his interest in the mortgaged premises by deed which was duly recorded.
The complainant, through various mesne conveyances, having acquired the equity of redemption on the 13th of January, 1855, called on the defendant, Burnham, for an account of the rents and profits, which she declined to render; he therefore caused a tender to be made of an amount much exceeding that for which the conditional judgment had been rendered, and costs and interest thereon, and left the same in her hands. It does not seem to be contested that the sum then tendered was amply sufficient. As the mortgage had been assigned to, and as the title to the same appeared of record to be in her, the complainant, after such demand, refusal to account, and tender, has brought this bill for the purpose of redeeming the mortgaged premises.
The defendant, Burnham, against whom the bill was originally commenced, sets up by way of defence in her answer, the fact that she had, previously to the demand upon and tender to her, parted with all her interest in the mortgaged premises to Jane Osgood, upon whom the demand to account and to whom the tender should have been made, and that the complainant had notice of all these facts, and that consequently the bill cannot be maintained against her.
It may be conceded that if there was a valid assignment and transfer of the mortgage, and the complainant had due
The fact of notice to the complainant, which is asserted in the answer, is a material fact in determining the rights of the parties. The complainant, by the existing law of this state, is a competent witness, and he most explicitly denies all notice of the transfer of the mortgage.
No rule can wisely be established by which any judgment is peremptorily made of the trustworthiness of testimony in advance of its utterance, and in entire ignorance of its truth or falsity. Any such rule, if established, would afford about as safe a guide for the action of the court in judicial investigations of fact as the oracular utterances of the astrologer would for the conduct of life. The old rule of equity, that the answer of the defendant when responsive to the bill, is to be taken as true unless disproved by two witnesses or by a witness and corroborative circumstances, rests only on ill considered precedents, and wants the greater and more imposing authority of sound and enlightened reason. Its extension therefore is not to be favored. It existed when the complainant was not a witness. But now both parties being witnesses, causes must be determined by a careful comparison of their testimony, if they are the only witnesses, as in the case of a conflict of proof between witnesses who are not parties. The relative trustworthiness of the parties is to bo determined by the tribunal before which the issue is raised. In the present case there is no proof that the assignment was recorded. The attorney for the complainant, in his testimony, states that after a careful examination of the records, he was unable to find any deed of assignment from the defendant, Burnham. If it had been recorded, and the record had been overlooked, it could have been easily shown. If not recorded, the complainant could only know by information of others. The defendant, Burnham, does not allege that she ever gave information to the complainant or to his coun
The important question therefore arises whether the owner of an equity of redemption can legally make a demand upon or a tender to, or bring a bill in equity to redeem against the mortgagee or the assignee of such mortgagee, in whom the title to the mortgage appears of record, notwithstanding the mortgage may have been assigned, if he be in fact ignorant of such unrecorded assignment. In other words, is the assignment of a mortgage to be recorded, and is a demand upon and a tender to the mortgagee of record or the assignee of record, binding on the estate so far as to authorize the court to sustain a bill against him, and to compel the negligent assignee to release or discharge the mortgage, as the legal consequence of his neglect to have his assignment recorded?
A mortgage is an estate upon condition defeasible upon the performance of the condition according to its legal effect. Erskine v. Townsend, 2 Mass. R., 493. An assignment of a mortgage is a deed by which the interest of the mortgagee is transferred. A Court of Chancery will undoubtedly interfere to protect equitable rights not recognizable at law. By the common law, to enable an action to be maintained, the assignment must be by deed. Parsons v. Wells, 17 Mass. R., 419; Warden v. Adams, 15 Mass. R., 233; Peoples’ Bank v. Smith, 24 Maine R., 191. But as the mortgage is an interest in real estate, the assignment of a mortgage is the assignment of an interest in real estate, and must be recorded.
The defendant, Burnham, having the apparent title to the mortgage, by the records, and the complainant having no notice of any transfer, the bill to redeem was properly brought against her.
The law seems well settled that payment to a mortgagee is good before notice of an assignment. James v. Johnston, 7 Johns. R., 417. In this case there was no notice by record, and there is no proof of notice in any other mode. Payment to an assignee is uniformly upheld in law as well as in equity, if made to the original payee without notice of transfer or assignment. Where a claim is assigned the assignee well knows that the contract was not made originally with him, and that the maker does not and cannot know without notice that payment is to be made to any person other than the one
Such is the unquestioned law between the original parties to a mortgage or any other contract. If there be an assignment and notice, the assignee stands in the place of the assignor, and consequently payment may rightfully be made to such assignee, and may continue to be made to him as to the original party until a new assignment is made and notice thereof is given. It follows, therefore, that if the mortgage was assigned by the defendant, Burnham, still the complainant might well make a payment to her, and should equitably be protected in such payment until there should be notice to him of an assignment by her.
The demand upon the defendant, Burnham, and the tender to her of the amount due, in the absence of all notice that she had parted with her interest in the mortgage, must be upheld. As all the prerequisites to the successful maintenance of the bill haye been established as against the defendant, Burnham, it is not to be defeated by the allegation of an unrecorded assignment of which the complainant was ignorant.
The alleged assignee of the mortgage has been made a party. The bill, as amended, denies the existence of the alleged assignment. The proofs in the case show no such assignment. No exhibit thereof has been made. The defendant, Osgood, by permitting the bill to be taken, as confessed against herself, thereby admits that there is no deed of assignment under which she claims any rights adversely to the complainant.
The conditional judgment having been entered in the action Hamden v. Harnden upon the mortgage, the plaintiff, to be entitled to redeem, must pay such further sums, if any,
Upon the coming in of the master’s report, a final decree, such as the equitable rights of the parties may require, will be entered up.