Stowe v. Merrill

77 Me. 550 | Me. | 1885

Virgin, J.

Writ of entry. Both parties claim title from Joseph L. Merrill; the plaintiff, as assignee of an alleged foreclosed mortgage of the demanded premises, given by J. W. Merrill, (son of Joseph L.) who derived his title through several mesne conveyances from his father; and the defendant, (formerly the wife and now the widow of Joseph L. Merrill,) by virtue of an alleged assignment of dower set out to her on a writ of seizin issued October 16, 1883, on a judgment for dower recovered on default against her son at the preceding September term.

1. 'Willis’ bond to his grantor, Joseph L. Merrill, executed more than three years after the delivery, of Merrill’s absolute deed to him, can not be considered an instrument of defeasance, and thereby render the conveyance a mortgage, the bond not having been " executed at the same time with the deed or as a part of the same transaction.” E. S., c. 90, § 1. And the fact that the defendant took a similar bond from Philbrook to herself more than a year after Willis conveyed to him, shows that she also so understood it. And were it otherwise, the bond never having been recorded, it would not have operated as a defeasance as against the subsequent grantees, Philbrook or Twitckell. E. S., (1871,) c. 73, § 9.

2. While the mortgage under which the plaintiff claims describes the note secured thereby as one payable in "one year, ” and the note produced has a blank space therein after the words "in one, ” and before the words "after date,” the identity is established by the recital in the case that the " execution and delivery of the deed of assignment, also the note secured and unpaid, are admitted. ” Moreover, if no such admission had been made, the note itself with the attending circumstances, satisfy us, in the absence of any counter testimony, that the word "year” was intended by the parties to fill the blank. Nichols v. Frothingham, 45 Maine, 220, and cases cited in the opinion of the court.

3. It is contended that the agreement limiting the time of redemption to one year, as authorized by St. 1876, c. 113, (now E. S., c. 90, § 6,) although it was "inserted in the mortgage” as the statute requires, it was not signed by the mortgagee, which the statute does not require. But both parties are not required to sign a deed of this character in order that its stipulations shall be binding on them; being a deed poll, on acceptance by the grantee it became the mutual act of both parties thereto, and therefore binding on them. Newell v. Hill, 2 Met. 181.

4. Neither does the statute require such agreement to be incorporated in the notice of foreclosure. The notice contains everything required by E. S., c. 90, § 5, viz. : the claim by mortgage of premises so intelligibly described as to inform the party entitled to redeem with reasonable certainty what premises are intended (Chase v. McLellan, 49 Maine, 375) ; mention of the date of the mortgage; and an allegation of a breach of its conditions, together with a claim of foreclosure by reason thereof.

5. The law does not require publication of the notice twenty-one days before record. " It was published in three consecutive weekly issues of the newspaper. The record in the registry of deeds must be ' within ■ thirty days after such last publication.’ Therefore it may be within one day after.” Wilson v. Page, 76 Maine, 281.

6. It is contended that the transactions between J. L. Merrill and Willis, constituted a mortgage ; that the conveyance of November 27, 1868, from Willis to Philbrook operated an assignment of that mortgage which was paid and thereby discharged April 5, 1871. The only evidence urged in support of of such contention is the nominal receipt of that date from Philbrook to Merrill. But, as already seen, the deed and bond did not constitute a mortgage ; and the giving of another bond in 1868 shows the parties understood the former was no instrument of defeasance. Moreover, as late as December 14, 1872, J. W. Merrill, son of J. L. Merrill and of this defendant, took a bond of the premises from Philbrook and Twitchell (Willis’ successors in title) whereby they obligated themselves to convey to him on payment of six hundred and fifty dollars at the various times therein specified ; which he would not be likely to do, if the parties understood the title was one of mortgage and that discharged.

We are of opinion, therefore, that the plaintiff has proved a regular chain of title from Willis to whom this defendant released her right of dower which she now sets up in defence; which title became absolute in one year after the first publication of his notice of foreclosure. To be sure the defendant recovered judgment for dower against her son (who once held the title) four years after he had conveyed it to the plaintiff’s assignor; but assuming (without deciding) that the commissioners selected to set out the dower were legally sworn by the deputy sheriff who held the writ of seizin, that judgment cannot bind this plaintiff who was neither party nor privy thereto; and hence' there must be,

Judgment for the plaintiff.

Peters, C. J., Walton, Libbey and Haskell, JJ., concurred.