Sidelinger v. Bliss

| Me. | Jun 12, 1901

Fogler, J.

This is an appeal by the complainant from a decree below dismissing the bill with costs for the respondent.

The case is thus: On the 12th day of March, 1895, one Hopkins conveyed to the complainant, in mortgage, certain real estate described in the bill, situate in Waldoboro in the county of Lincoln. This mortgage was not entered for record in the registry of deeds for Lincoln county until March 23, 1897.

October 9, 1896, the same mortgagor conveyed the same premises in mortgage, to Hiram Bliss Jr., the. defendant’s intestate, which last named mortgage was entered for record in said registry on the 10th day of October, 1896.

The complainant alleges in his bill that when the mortgage of October 9, 1896, was given, Hiram Bliss Jr., the mortgagee, had actual notice of the mortgage given to the complainant March 12, 1895.

The bill prays that the priority of the complainant’s right and title under his mortgage, over the right and title of the defendant under his mortgage, be established and declared by an appropriate decree.

The case was beard by Chief Justice Peters at the October term, 1899, in Lincoln county. The Chief Justice, after maturely considering the case, filed his decree dismissing the bill with costs November 24, 1899, from which decree the complainant appeals.

The issue was purely of fact.

The decision of a single justice upon matters of fact in an equity hearing should not be reversed unless it clearly appears that such decision is erroneous. Paul v. Frye, 80 Maine, 26.

The burden is upon the appellant to show that the decree appealed from is clearly wrong, otherwise^-it must be affirmed. This burden the appellant has not sustained. A careful examination and consideration of the testimony, and of the arguments of counsel, fail to convince the court that the decree should be disturbed.

Appeal dismissed.

Decree below affirmed with additional costs.