63 Me. 539 | Me. | 1874
The plaintiff demands possession of a tract of land situated in the town of Pittsfield, in this county, described in his
The defendants have jointly pleaded the general issue only, the brief statement not having been seasonably filed. JYul disseizin admits that the defendants are in possession of the whole premises demanded, claiming a freehold therein, and denies the demandant’s right to recover any part thereof. Having the actual possession, which neither party can deny under this issue, the possessory title of the defendants will prevail until the plaintiff shall succeed in proving a better one. The question, therefore, is — who has the better title to all, or any, of the demanded premises; for, under our statute, the- demandant can recover any specific part of the premises to which he proves a title, though less than he demanded. R. S., c. 104, § 10; and no more, although the tenant set up no title. Bruce v. Mitchell, 39 Maine, 390.
The plaintiff’s title rests entirely upon the true construction of
The last named case is precisely in point. The description in the demandant’s mortgage was, “my homestead farm situated in Jay, being lot No. 13, in range 4, containing one hundred acres, more or less, with the buildings thereon.” The “homestead farm” comprised all of No. 13 and a portion of another lot. Weston, O. J., speaking for the court, says: “Asa Allen conveyed to Thomas Allen in mortgage his homestead farm in Jay. In the
Shall the judgment be conditional or absolute ? By the stipulation in the report the court “are to enter such judgment as shall be in accordance with the legal rights of the parties and the law of the case.”
It appears that the plaintiff, on August 2, 1872, commenced a foreclosure by publication in a newspaper, in accordance with the provisions of R. S., c. 90, § 5, clause 1; and that in the spring of 1873, after Mrs. Fowler had left the premises, the plaintiff entered and took possession, and notified the defendants thereof. This the plaintiff had an undoubted right to do, notwithstanding he had commenced the foreclosure by publication. The legal estate and the right of possession of a mortgagee in fee result from the legal effect and operation of a conveyance in mortgage; and they cpntinue in him until a full and complete performance of the condition, or a tender equivalent thereto. Allen v. Bicknell, 36 Maine, 436; Smith v. Johns, 3 Gray, 519. Nor is there anything legally inconsistent in his taking possession after the publication. Concord U. Mut. Ins. Co. v. Woodbury, 45 Maine, 453; Mann v. Earle,
But it also appears that soon after such actual entry by the plaintiff, the defendants, against the express objections of the plaintiff, entered, took possession, cultivated the premises and carried off the crops and hay. The defendants thereby became trespassers, and the plaintiff might thereupon bring trespass or a writ of entry against them as disseizors. Miner v. Stevens, 1 Cush., 486; Haven v. Adams, 4 Allen, 93. He elected to bring the latter, and thus try his title; which was, not his right to enter and foreclose his mortgage, but his right to maintain the possession and title which he acquired by his entry. And this is the avowed object of his action as set out in his declaration. He is therefore entitled to an absolute judgment as at common law, which, however, will not in any manner contravene any lawful right of redemption. Haven v. Adams, ante.
Again. It has long been the settled law in this . State and in Massachusetts, that a mortgagee may declare on his own seizin generally, and have judgment as at common law against all persons except the mortgager axxd his successors in title; axxd even against them unless they pleaded their intex’est aud prayed for a conditional judgment which the court would grant wheix the condition had been broken; for by so doing the necessity of bringing a bill for redemption was avoided. The substance of these decisions is incorporated in R. S., c. 90, § 7. In the case at bar, a conditional judgment is not claimed by “motion of either party,” and the plaintiff has “declared on his own seizin;” hence this section does not require a conditional judgmexxt in this case.
Nor will this action, or the judgment rendered upon it, be deemed a waiver of the foreclosure by publication, since the. action was not commenced and prosecuted upon the mortgage for the pux'pose of foreclosing it, as in Smith v. Kelley, 27 Maine, 237; Tufts v. Maines, 51 Maine, 393; bxxt for another expressly declared purpose.
The judgment being absolute, and the plaintiff having claimed
Judgment for plaintiff for lot Wo. 9, and for $75, as damages for rents and profits.