Smith v. Kelley , 27 Me. 237 ( 1847 )

The opinion of the Court was drawn up by

Tenney J.

As between the mortgagor and mortgagee of land the legal estate is in the latter. By the law, as it is settled in this State and Massachusetts, the interest of the mortgagee cannot at law pass to a third person without an assignment in some form in writing under seal. Parsons v. Welles & al. 17 Mass. R. 419; Vose v. Handy, 2 Greenl. 322; Prescott v. Ellingwood, 23 Maine R. 345. Hence no person can be considered as claiming under the mortgagee, unless the claim is by virtue of a deed, notwithstanding the personal contract intended to be secured by the mortgage may be transferred by indorsement, or assignment and delivery.

If a mortgagor, or person claiming under a mortgagor, would lay the foundation for the maintenance of a bill in equity, for the redemption of mortgaged estate, by previous payment or tender. Such payment or tender is required to be made to the mortgagee or person claiming under him. Statute, chap. 125, sect. 17.

The plaintiff in the equity suit at bar, upon the tenth day of March, 1846, made a tender of the full amount due upon the mortgage from which he seeks a decree for redemption, to the defendant’s attorney, who had possession of the note, secured by the mortgage, which note was duly assigned, and requested that the note might be given up and the mortgage discharged. At the time of the tender, the defendant had no assignment of the mortgage, and the money tendered was not received in his behalf; and the note was not given up, or the mortgage discharged. This tender was insufficient to entitle him to a decree in his favor.

The tender of payment of the note, made long after its maturity, could not have the effect to discharge the mortgage. After the condition in the mortgage was broken, the mortgagee’s title to the estate was perfect, subject to be defeated only by a process in equity, founded upon payment or tender of payment before foreclosure, as provided in our statute. Maynard v. Hunt, 5 Pick. 240.

In each of the two suits at law, brought upon the two mortgages given by Bragdon to Cook, the demandant claims to be entitled to a conditional judgment. The tenant disclaims any title or interest in the premises described, or possession thereof, excepting five acres, which is covered by his deed from Brag-don, and which is described in his brief statement; by the facts agreed, he has not been in possession of any portion of the residue, or made claim thereto. The demandant in these suits can have judgment against the tenant, in each, for an undivided half of the premises, as demanded, unless the money due, upon each mortgage, respectively be paid; because the part in the possession of the tenant is liable for all the money due upon the mortgages. Taylor & al. v. Porter, 7 Mass. R. 355.

The commencement and prosecution of the actions upon the two mortgages, is a waiver of the entry to foreclose, made by the demandant on the 16th day of September, 1843. Fay v. Valentine, 5 Pick. 418; Doe v. Palmer, 16 East, 53; Goodnight v. Cardwent, 6 T. R. 219. And the action commenced by the demandant in September, 1846, on the ground that there had been a foreclosure of the mortgages, cannot be maintained, being in effect for the same cause of action em-ibraced in the proceedings.

Bill in equity dismissed with costs for defendant. — Judgment for the demandant in each of the suits upon the mortgages for seizin of one undivided half of the ■ premises, unless the sum due upon each respectively he paid within two months.

In the other suit, the demandant nonsuit, costs for the tenant.