York v. Murphy , 91 Me. 320 ( 1898 )

Haskell, J.

Bill in equity to annul a chattel mortgage and if found valid to redeem the same. The bill was dismissed on demurrer below and the cause comes up on exceptions.

The bill charges that the mortgage was not recorded in the town where the mortgagor resided, and the demurrer admits the fact. Of course, as to this plaintiff, an innocent purchaser of the property, the mortgage is invalid, and the defendants, the mortgagees, have no title to the property thereunder, and in their replevin suit against a bailee of the plaintiff, she has a perfect defense at law, and has no need of relief in equity. Act of 1895, c. 39; Bachelder v. Bean, 76 Maine, 517; Milliken v. Dockray, 80 Maine, 82.

But, if the plaintiff’s defense to the replevin suit shall fail, from facts not disclosed in her bill, inasmuch as foreclosure proceedings have been enjoined and security has been given therefor, she may hereafter be allowed to amend her bill as a bill to redeem upon payment of costs of this suit, tender of mortgage debt with interest and costs of foreclosure.

Exceptions overruled.

Bill retained for amendment.