Cotton v. McKee , 68 Me. 486 ( 1878 )

Yirgin, J.

Was the bond from Jordan to Cotton executed and delivered under such circumstances as to constitute it an “instrument of defeasance,” and a “ part of the same transaction ” with the quitclaim deed from Cotton to Jordan? The plaintiff testifies that it-was, and the defendants deny it. If the plaintiff is right, and has sustained the burden of establishing the proposition by the proofs in the case, then his bill should be sustained. R. S., c. 90, § 1.

After a careful examination of the proof, it fails to satisfy us. Against the testimony of the plaintiff alone, stands the positive testimony of the defendant Jordan and two disinterested wit; nesses. The papers themselves are silent upon this point. Neither makes any allusion to the other, as in Bailey v. Myrick, 50 Maine, 171, 175. The facts and circumstances testified to by the plaintiff’s wife, the agreement to pay rent during the life of the bond, and the delay in moving for redemption until after the valuable improvements made by the other defendants, are too strong to be overcome by the plaintiff’s unsupported testimony.

Again we think Bodwell v. Webster, 13 Pick. 411, is decisive of the case.

Bill dismissed with costs.

Appleton, C. J., "Walton, Barrows and Libbey, JJ., concurred.