Winchester v. Ball

| Me. | Jul 1, 1867

AppletoN, C. J.

The plaintiff, on April 24, 1860, mortgaged to the defendant the mare and two cows in controversy, to secure a note given by him for the sum of three hundred dollars, payable in seven months, which was not paid at maturity.

" A mortgagee of personal property, upon the failure of the mortgager to perform the condition of the mortgage,” remarks Sutherland, J., in Langdon v. Buel, 9 Wend., 80" court="N.Y. Sup. Ct." date_filed="1832-05-15" href="https://app.midpage.ai/document/langdon-v-buel-5513902?utm_source=webapp" opinion_id="5513902">9 Wend., 80, " acquires an absolute title to the chattel. This is well established to be the legal effect and operation of a mort - gage of personal property. Brown v. Bement, 8 Johns., 96" court="N.Y. Sup. Ct." date_filed="1811-05-15" href="https://app.midpage.ai/document/brown-v-bement--strong-5472821?utm_source=webapp" opinion_id="5472821">8 Johns., 96; Ackley v. Finch, 7 Co wen, 290.” Such is held to be the common law in this State. Flanders v. Barstow, 18 Maine, 357.

By R. S., 1857, c. 91, § 3, a right of redemption is allowed "within sixty days after breach of condition.” At the expiration of that time, if the debt secured by the mortgage is not paid, the title of the mortgagee becomes absolute. Clapp v. Glidden, 39 Maine, 448.

After the defendant’s title became absolute, the plaintiff paid a part of the mortgage debt. The mortgagee, by receiving this payment, must be regarded as having waived his strict- legal rights. The rights‘of the parties were the same as if the payment of the note had been thus extended. The mortgagee might redeem within sixty days from the last payment. Neglecting to do that, his equity of redemption was foreclosed. The mortgagee, by waiving a forfeiture, is to be in no worse condition than if his note had become due at the date of the partial payment. In Blanders v. Barstow, 18 Maine, 357, the mortgagee, by parol, extended the time of payment fifteen or twenty days. "The plaintiff,” remarks Weston, C. J., "having failed to pay the first note, at the time stipulated, was a breach of the condition, if the time had not been enlarged. Being enlarged, the condition was saved, until the extended time had run out.” The mortgagee, by receiving the money, did not enlarge the time of payment indefinitely.

The plaintiff’s rights are not saved by statute of 1861, c. 23, as by § 8 it is .specially provided that "its provisions shall be applicable only to mortgages subsequently executed.”

The mortgage of Jan. 6, 1862, given to secure a note of §25, is not within the provisions of the Act of 1861, c. 23, as that applies only to a " mortgage of personal property to secure the payment of more than thirty dollars.” It became forfeited by failure to perform its condition.

Exceptions overruled.

Kent, Dickerson, Barrows and Daneorth, JJ., concurred.