Brown v. Snell , 46 Me. 490 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

The bill in this case alleges that Thomas Snell, on the 8th of October, 1851, mortgaged the premises-sought to be redeemed to one Milliken, who having entered to foreclose, on the 21st of August, 1855, assigned his interest in the same to the respondent, describing him in the assignment as of Prescott, in the State of Wisconsin; that, on the 29th of March, 1855, the President, Directors & Co. of the Waterville Bank sued out a writ of attachment against said Thomas, on which his right to redeem was attached; that, having entered their action and obtained judgment therein, they caused his right to be seized and sold on execution, on the 24th of April, 1855, to one Daniel H. Brown, who conveyed his title, thus acquired, to the plaintiff.

The bill further alleges, that the mortgage was fraudulent; that the mortgage debt was paid before the pretended assignment to this defendant; that these facts were well known to him; that, at the time of the assignment, he was not a resident of this State; that he has not since been; that he has had no agent; and, that the plaintiff could neither make a demand upon the defendant to account, nor could he tender to him the amount due; and therefore that, being ready and offering to pay what might be due, he filed this bill, and deposited with the clerk the sum of five hundred dollars, subject to the order of the Court.

The prayer of the bill is for an account; for a decree determining whether any, and, if any, what sum is due, and that the plaintiff may redeem upon payment of what may be found due; or, if nothing be found due, or, if the mortgage be fraudulent, that defendant deliver up the mortgage to be cancelled, and be ordered to release all interest under the same to the plaintiff, and that he be perpetually enjoined from setting up the title thus acquired.

The answer admits the record title as stated in the bill; sets forth an entry to foreclose under the provision of R. S., c. 125, § 3, by entering peaceably, &c., in the presence of two witnesses, Ac.; denies any knowledge or belief that the mortgage was fraudulent, or that the debt had been paid; and alleges that he was and is ready and willing to receive the amount deposited and give a release, but that, upon his tendering such release, he was refused the money, &c.

The plaintiff claims the mortgage debt was fully paid before the assignment thereof to the defendant, and, therefore, that he is entitled to a discharge of the mortgage, and to a release. But, if so, the mortgage debt was paid before the attachment and sale of the equity of redemption. If so, there was no subsisting mortgage, consequently no equity. If no equity of redemption, then nothing passed by the sale, and the plaintiff has no other or greater rights than any other stranger to interfere.

If the mortgage was fraudulent, creditors might disregard it, and levy upon the land as unencumbered. But if a creditor, regarding the mortgage as subsisting, choose to sell the equity and purchase it in, it is not for him, after treating it as valid, to claim that it be decreed as null and void, and to hold the land discharged therefrom, and thus acquire the fee at the price of the equity. Bullard v. Hinckley, 8 Greenl., 289; Russell v. Dudley, 3 Met., 147.

It remains to be seen whether, if the mortgage be regarded as outstanding, this bill can be maintained.

By R. S., 1841, c. 96, § 10, this Court has “power to hear and determine, as a Court of equity,” “ all suits for the redemption or foreclosure of mortgaged estates.” The modes of foreclosure and the proceedings for redemption are prescribed by R. S., 1841, c. 125. The modes of redemption then established embrace all the authority conferred upon this Court in reference to this subject matter. It would be absurd to hold that the Legislature specially determined the proceedings to be had for the foreclosure and redemption of mortgaged estates, and yet by a general clause established not merely those thus designated, but the whole course of procedure as existing in a court of general equity jurisdiction. It has been repeatedly held that the powers of this Court are limited and restricted by the statute, under and through which alone it derives its authority in reference to the redemption of mortgages. “ As to suits for redemption,” remarks Whitman, C. J., in Shaw v. Gray, 23 Maine, 174, “ the power delegated must have reference to the modes of proceeding particularly prescribed for the purpose.” French v. Sturtevant, 8 Greenl. 246; Chase v. Palmer, 25 Maine, 341.

.The plaintiff, therefore, to entitle himself to maintain his bill, must bring his case within the provisions of R. S., 1841, c. 125.

His case is not within section 16, because there has been no tender on the part of the mortgager, nor refusal on the part of the mortgagee to render an account upon request, nor any negligence nor delay in accounting.

The plaintiff does not bring himself within section 19, because the bill is brought after “ an actual entry for breach of the condition,” when, by that section, it should be brought before such entry.

The amendment to section 19, R. S., 1841, p. 169, affords no aid to the plaintiff, because that is limited to a foreclosure without taking possession, according to the mode provided by c. 125, § 5.

This bill was commenced in 1856, and, therefore, the plaintiff cannot invoke the provisions of R. S., 1851, c. 90, § 15.

The plaintiff having failed to show a compliance with the provisions of R. S., c. 125, and this Court having limited jurisdiction, within which the plaintiff has not brought his case, the bill cannot be maintained. Bill dismissed.—

Costs for defendant.

Tenney, C. J., and Cutting, May, Davis, and Kent, J. J., concurred.