Chase v. Palmer , 25 Me. 341 ( 1845 )

The opinion of the Court was drawn up by

Whitman C. J.

This is a suit in equity. In regard to such suits, the jurisdiction conferred upon this Court is limited and specific. Even in courts of general equity jurisdiction, the “ bill must state a cause within the appropriate jurisdiction of a court of equity. If it fails in this respect the error is fatal in every stage of the cause; and can never be cured by any waiver, or course of proceeding by the parties.” “ The Court itself cannot act except upon its own intrinsic authority in matters of jurisdiction.” Story’s Eq. PI. 8.

One of the defendants, George Palmer, is alleged in the bill to have mortgaged the premises in question to the plaintiffs. The proper proceeding against him would seem to be to obtain possession of, or to foreclose the mortgage. Yet we do not understand such to be the object of this bill. And if it were, though this Court, by the Revised Statutes, c. 96, is in terms authorized to take cognizance, as a court of equity, of “ suits for the redemption and foreclosure of mortgaged estates,” it is believed, that the statute concerning mortgages, c. 125, actually precludes any action of this Court, sitting in equity, on the subject of foreclosing mortgages; the provisions of that statute containing the rules, which must govern in reference thereto; and none of them having reference to the action of a court of equity. The language of the statute therefore,jis to foreclosing mortgages in a court of equity, is inappropriate, and must have been introduced inadvertently, without recurring to the specific provisions enacted for the purpose.

What, then, is the object of this bill, of which a court of equity can take cognizance ? It recites a willingness to redeem certain mortgages, older in date than that held of the premises by the plaintiffs; and sets forth, that means have been taken to obtain from the defendants, one of whom is alleged to have obtained an assignment of them in trust for one or both of the others, information of the amount due on them, with a view to make a tender of such amount; and that the plaintiffs have been frustrated in that attempt, by the refusal of the defendants to make such statement. But the bill does not conclude with any prayer, particularly, that any account may be taken, to ascertain the amount to be paid, in order to a redemption; or that the plaintiffs may be allowed to redeem those mortgages ; nor are we furnished with any proof, that the defendants, who peremptorily deny any refusal or neglect on their part to state the amount due on those mortgages, to overcome such denial; nor is it stated or proved, that any tender of the amount due on those prior mortgages, has ever been made. The bill, therefore, if such were in fact the object of it, is not sustainable for the purpose.

The bill, however, further sets forth, that the defendants have conspired, for the purpose of- wronging the plaintiffs, to have those prior mortgages assigned to the defendant, Charles Palmer, for the use and -benefit of the said George, and by the use of his funds; and thereupon prays that the defendants may be decreed to account for, and pay over to the plaintiffs, such rents and profits as they have received or might have received from the premises mortgaged by the said George to the plaintiffs; and that such prior mortgages may be decreed to be canceled.

The' first inquiry, which would naturally occur upon this branch of the case, is, what right, under a proceeding in equity, has a mortgagee to claim of his mortgagor, or of others, not in the possession of the mortgaged estate, as is the condition of Charles Palmer, to be paid for rents and profits of the estate, holden by him in mortgage, anterior to his entering into the possession thereof. It is believed that such a claim is unprecedented and not sustainable. It has been often ruled, that the mortgagor is not accountable to the mortgagee for rents and profits, till the latter has entered into possession for condition broken or otherwise.

The claim, however, to have the prior mortgages canceled, may be supported, if we can regard them as having been discharged by payment. The averment in the bill, that they have been purchased by Charles Palmer, with the funds of George, and are holden in trust for the latter, may be regarded as tantamount to an averment, that they have been discharged by payment. In § 16, 17, and 18, of the Revised Statutes, c. 125, it appears to be provided, that whenever any sum of money due on a mortgage, has been paid or tendered to the mortgagee, or person claiming under him, by the mortgagor, or person claiming under him, within the time prescribed for the redemption of mortgaged estates, he may have a bill in equity for the redemption of the mortgaged premises. The preliminary demand of a statement of the amount due, in order to the sustaining of a bill, is, in such case, dispensed with.

It seems to be conceded on all hands, that Charles Palmer holds the prior mortgages in trust for some one. Tt is equally clear, that, of his own funds, he has paid nothing for them. The defence is, that he holds them in trust for Abigail, the wife of George, and one of the parties defendant. She and her husband, in their answers, state, that the purchase was made at her request, and with her money, received by her, partly for her distributive share in the estate of her grandmother, and partly for her share of the estate of her former husband; and, although received since her intermarriage with her present husband, yet that it never went through his hands or was ever in his possession ; but was paid directly to her; and it is insisted, therefore, that it was her separate property. And the statement further is, by all the defendants, that she furnished Charles with the funds to buy those mortgages. The evidence, however, that she received the money herself, without the intervention of her husband is at least doubtful. But suppose it to be a fact, that Mrs. Palmer received the money herself, personally, from the sources named in her answers, and kept it in her possession till delivered over to Charles, how will the case stand ?

When a woman marries, there is no question, but that whatever money she possesses instantly becomes her husband’s. All the authorities agree in this point. How does it vary the case that it comes into her hands for a debt before due, or for a legacy or distributive share of the estate of a relative ? Mr. Reeve, in his Domestic Relations, lays down the law in this wise. He says, “ I know of no difference between money belonging to her (the wife) in the hands of trustees, and money paid to- her, which would certainly belong to the husband.” Though the first part of this position, as to money in the hands of trustees, may be questionable, and the correctness of it has been doubted, the latter part, as to money paid to her, remains unshaken. If, then, the money, as is alleged, came directly into the hands of Mrs. Palmer, and remained there till handed over to Charles, for the purpose named, it became the property of her husband; as much so as if actually paid to him. The same author, at page 60, says further, that even a legacy bequeathed to a married woman, not named as being for her exclusive use, vests in the husband ; and that he may sue for it, without joining her in the suit. This, according to modern authorities, must be confined to suits at law; and legacies in this State are only so recoverable. Where suits in equity may be brought for legacies, bequeathed to the wife, she must be joined, that the Court may have it in its power to compel him to make suitable provision for her out of them. If a note be given to a feme covert for a legacy bequeathed to her, it will be the property of the husband. Commonwealth v. Manley, 12 Pick. 173. So if husband and wife jointly empower a person to receive a legacy, bequeathed to her, the instant he receives it, it becomes the absolute property of the husband. Muntly v. Griffith, Moore, 452. These cases show that legacies and distributive shares, coming to the wife, vest in the husband, and become his absolutely, the moment they cease to be choses in action. When paid to the wife, with his approbation, they are paid to his lawfully authorized agent, and virtually to him; and become his, as much so as any other funds he may hold. The money, then, which Mrs. Palmer received, whether for legacies or distributive shares in the estates of her relatives, whether paid first to him or her, became the money of her husband; and that money it was, if the statement of herself and husband may be believed, with which the prior mortgages were purchased.

But it is urged, that her husband gave her the money, as and for her own, exclusively; and so that she might employ it for her own benefit, independent of his control. And equity recognizes the validity of such gifts, though the common law does not. But, even in equity, the rule is not without an exception. To make such a gift valid it must be free from injury to others, viz. to creditors. If the husband be insolvent, as in this instance he unquestionably was, he had no power to alienate any portion of her funds gratuitously; not even to his wife. Stanning & al. v. Style, 3 Peere Wms. 334.

Impressed with these views of the state of the case, we have not deemed it important, that we should minutely examine, as to the discrepancies between the statements of Mrs. Palmer, and the evidence adduced, in reference to how she came by the funds, with which to purchase the prior mortgages. It is obvious that serious difficulties would be encountered in an attempt to reconcile them.

On the whole, we are brought to the conclusion, that the prior mortgages have, in effect, been discharged by the use of the funds of the defendant, George Palmer, whose duty it was to discharge them, and free the premises from their incum-brance, in order to give effect to his mortgage to the plaintiffs. The sums alleged to have been advanced in making improvements and repairs were derived from the same sources, as those for purchasing in the prior mortgages, and must fall into the same category. Whatever the mortgagor may do of that kind, cannot be taken into consideration as affecting the claim of the mortgagee. Charles Palmer must be decreed to extinguish his claim under the prior mortgages; and George Palmer and his wife, Abigail, must be enjoined never to set up any claim under them adverse to that of the plaintiffs. And a decree may be drawn up in form, and entered accordingly.

The plaintiffs are allowed their costs.