Brown v. Bates , 55 Me. 520 ( 1868 )

Walton, J.

Jonathan Bryant mortgaged the demanded premises (with other lands) to William Wilson, Amherst Whitmore, Thomas J. Southard, and James M. Hagar. Three of these .mortgagees (Wilson, Whitmore and Southard) have assigned their interests to the plaintiff, and the only ground taken in defence is that the interest of Hagar, the fourth mortgagee, has been assigned to the defendant, and that he is a co-mortgagee with the plaintiff; and the question is then very pertinently asked, if one co-mortgagee can maintain an action for possession against another. We do not find it necessary to answer this question, for the reason that the evidence fails to establish the fact that the defendant is a co-mortgagee with the plaintiff-.

The defendant does not appear to have any other title than what he obtained from Foster, and Foster had none except what he derived through the sheriff’s deed, and the sheriff’s deed conveyed only an equity of redemption. The parties may have supposed that the sheriff’s deed conveyed not only the equity but also the interest of one of the mortgagees (Hagar) which had been assigned to the judgment debtor. But this was impossible. The interest of a mortgagee cannot be attached, or sold on execution. Smith v. People’s Bank, 24 Maine, 185. And the sheriff’s deed does not purport to convey anything but the equity of redemption. How then, can the proposition be maintained that the defendant is a co-mortgagee with the plaintiff? We think it cannot. It is neither proved nor admitted.

But the question here arises whether the action can be maintained in the name of the plaintiff alone, if he is the assignee of three only of the mortgagees, and the interest of the fourth is in some third party. We have no doubt it can be. When a mortgage is given to two or more persons to secure debts due to them severally, it creates a tenancy in common, and not a joint tenancy. Burnett v. Pratt, 22 Pick., 556. And tenants in common may all, or any two or more, join in the suit to recover the land, or any one ¡may sue alone. R. S., c. 104, § 9. The mortgage in this case was given to secure debts due to the mortgagees severally; namely, $400 to Wilson and Whitmore, $500 to Southard, and $600 to Hagar. The plaintiff, being assignee of Wilson, Whitmore, and Southard, is entitled to maintain a writ of entry for the possession against the mortgager, and all claiming under him, if the interest of Hager, the fourth mortgagee, has not been legally assigned to him, but is to be regarded as still vested in some third party.

The plaintiff, therefore, is entitled to judgment. Shall it be absolute or conditional? We think it must be absolute. The action is not brought to foreclose a mortgage, and no motion appears to have been made in the Court below for a conditional judgment, and we have no means of ascertaining the amount due upon the mortgage, — $1285,44 appears to have been due in 1855. And as the defendant is said to be in possession of only a small part of the mortgaged premises, and as he will be obliged to pay the whole amount due with interest in order to redeem such part, (Rangely v. Spring, 21 Maine, 130,) we presume a conditional judgment would be of no service to either party.

Judgment for plaintiff.

Appleton, C. J., Cutting, Dickerson, Daneorth and Tapley, JJ., concurred.