27 Me. 156 | Me. | 1847
The opinion of the Court was drawn up by
The plaintiffs set forth, that in the year 1836, Messrs. Wheeler and Perkins conveyed to said Vose ¡and one Spaulding, certain real estate, situate in Augusta in ■said county; and that Spaulding conveyed his portion thereof to the plaintiff, Hallet; and that, at the time the first named «conveyance was made, there was an incumbrance, by way of ¡mortgage, on said estate; and that the defendant has become the assignee thereof; and the plaintiffs claim to have a right to redeem the estate therefrom; and allege that they have taken the steps required by law to entitle them to do so. The defendant resists this claim upon two grounds: — first, that he was a subsequent bona fide purchaser of the same estate of Messrs. Wheeler and Perkins; and that the deed of those gentlemen to Vose and Spaulding was, as he avers, but a mortgage; and that the condition of it has been performed; and, secondly, that as it respects á portion of the premises, the deed of Messrs. Wheeler and Perkins to Vose and Spaulding, does not
Tire deed to Yose and Spaulding describes this portion of the premises as follows: — “ also a lot of land, situate in said Augusta, conveyed to us by George W. Perkins by deed, dated May 25th, A. D. 1836, and recorded, book 92, page 51.” The deed recorded on the page, and in the volume named, is found to have been from George W. Perkins, Sr., to George W. Perkins, Jr., the latter of whom, was one of the firm of Messrs. Wheeler and Perkins. But the deed, thus recorded, bears date May 25th, 1835, and does not purport to be to Wheeler and Perkins, as seems to have been supposed, in the deed, by them to Vose and Spaulding. But it is not pretended that, there is any o1 her deed on record from George W., Sr. to George W., Jr., nor is it pretended, that there is any other deed on record from the former to the latter, or to Wheeler and Perkins, except the one found on page 50, of volume 92, being of the other parcel conveyed, and so described. There is therefore no lot of land answering to that part of the description above quoted, and naming the grantee in the deed; nor is it pretended that there ever was any deed, named in the quotation, of the date of 1836. These two particulars, in the deed referred to, wholly fail; and cannot apply to any thing. Is there any other part of the description in the quotation which can identify the land intended to be conveyed ? If there is, it may pass, as has often been held. A deed is found to have been recorded in the book and page named, from George W. Perkins, Sr., to George W. Perkins, Jr., of a lot of land; and land owned by either of the grantors severally, may pass by a deed made by them jointly, if such can be seen to have been the intention of the parties. It is not to be doubted, but that the grantors intended, by the description as quoted, to convey something; and as the book and page of the records are referred to, for a description of what was intended to be conveyed, and, as we there find a lot described, which one of the grantors owned, there is as little reason to doubt, that the intention was to convey that estate particularly, as the
As to whether the conveyance to Yose and Spaulding, is to be deemed a mortgage or not, it may not be necessary to inquire. If it were a mortgage, and any part of the supposed condition remains unperformed, the plaintiffs, as to their right to redeem from the mortgage held by the defendant, will be in the same predicament as if their conveyance should be deemed to be unconditional. If in equity we can consider it a mortgage, the condition, the performance of which would render it void, would be that the grantors should “ pay all liabilities now due, or which may hereafter be due from them to the Freeman’s Bank, upon paper indorsed by the said Vose, or any other individual; also any sum which now or hereafter may become due to the Augusta Bank, from the said Wheeler and Perkins; also any sun? now due, or hereafter to become due, from them to the Granite Bank; also to Neguemkeag Bank; also any sum now due, or which hereafter may become due, to Joseph Eaton, of Winslow, and to S. Eaton.” It is not averred in the defendant’s answer, that the grantors ever performed such a condition ; but it is averred by the defendant, that believing the deed, in equity, would be treated as a mortgage, “ he had, at different times, and before the service of the plaintiffs’ bill upon him, and before the demand made upon him by the plaintiffs, as set forth in their said bill, paid and extinguished all the debts and liabilities specified in said deed.” And, as he had a subsequent deed of conveyance, from the same grantors, such a performance, if clearly established, and in conformity to the true intent of such supposed condition, might avail him in equity, if the deed should be treated as a mortgage. The burthen of proof would, however, rest upon him clearly to establish such grounds of defence. It is manifest, if the deed of Wheeler & Perkins is to be treated as a mortgage, they were so to perform the condition, that no detri
Again — it appears, that there is a certain debt due to the assignees of the Neguemkeag Bank, the security for which had been canceled, and given up to one Eaton by the plaintiff, Vose, as the attorney of that Bank, through misapprehension, and which was embraced in the terms of said supposed condition. There is also evidence tending to show, but concerning which we give no opinion, that another debt, within the terms of said supposed condition, yet due to an assignee or assignees of the Freeman’s Bank, had also been canceled through mistake or misapprehension.
We cannot, therefore, consider it as made out by the defendant, that “ he has, at different times, and before the service of the plaintiffs’ bill upon him, as set forth in their bill, paid and extinguished all the debts and liabilities specified in said deed,” according to the intent and import of said supposed condition. The plaintiffs, therefore, must be deemed to have a right to redeem the premises, and to hold the same, at least, until all equitable claims arising to the plaintiffs, or either of them, under the deed of Wheeler and Perkins to Vose and Spaulding, and the assignee of the latter, the said plaintiff, Ilallet, shall have been discharged. This being accomplished, the defendant will be in a condition to bring his bill in equity, claiming to redeem the estate as holden in mortgage.
As this case now stands, unless the parties can agree on the amount to be paid to redeem the premises from the mortgage held by the defendant, a master will be appointed to ascertain the amount: after which a decree may be entered for redemption.
