Chamberlain v. Gardiner , 38 Me. 548 ( 1854 )

Tenney, J.

— -It was decided in Ireland v. Abbott, 24 Maine, 155, that a mortgage could not be foreclosed, except by pursuing one of the modes provided by the statute for that purpose. C. J. Whitman, in delivering the opinion of the Court, says, “ the language of the statute seems to be plain and unambiguous, and we cannot hesitate in coming to a conclusion, that the defendant, in order to avoid the plaintiff’s right of redemption, must bring himself within one of the provisions named.

In Pease v. Benson, 28 Maine, 336, it is held, that a foreclosure cannot be made according to the second mode provided by statute, c. 125, § 3, without an actual entry into possession for condition broken, by the consent in writing of the mortgager, or those claiming under him; but that the written consent is of no effect, but to make such entry lawful.

The statute, under which proceedings in the cases just referred to, took place, that were relied upon as sufficient to work a foreclosure in three years therefrom, was that of 1821, c. 39, § 1. But that statute is not materially different from the one in force on October 29, 1849, R. S., c. 125, § 3, so far as it treats of taking possession for condition broken, in order to foreclose the mortgage. By the former, when any mortgagee, &c., shall lawfully enter and obtain actual possession, &c., for condition broken, &c., provided that the entry shall be by consent in writing of the mortgager, &c., the mortgager, or person claiming under him, shall have the right to redeem the same in three years, and not afterwards. By the Revised Statutes, after breach of the condition, if the mortgagee, &c., is desirous of obtaining possession for the purpose of foreclosure, he may enter into possession and bold the same, by consent in writing, of the mortgager, &c.

But, by the R. S., such written consent shall be recorded, and no such entry shall be effectual, unless such consent shall be recorded, c. 125, § 3. Such possession, obtained as above described, being continued for three following years, shall forever foreclose the right of redemption. § 4.

The provision in the R. S., that no such entry shall be effectual, unless such consent in writing shall be recorded, implies, that if the written consent shall be so recorded, such entry shall be effectual. This was not intended to dispense with the proof of the entry, for if so, all that would be necessary to show, would be the written consent, duly recorded, that the mortgager, &c., had given permission for the entry, and thereby dispense with evidence to prove the entry itself, and consequently authorize the omission in fact of that which the statute has made indispensable, to effect a foreclosure in this mode. The statute has provided, that as preliminary to the entry, the mortgager shall give his written consent, that it shall be made; and to prove this, the writing itself, duly recorded, is the evidence required.

The writing, signed a’nd sealed by the complainant, under date of Oct. 29, 1849, as proof of possession taken, fails to establish such fact. It is a consent, that the defendant, Augustus K. Gardiner, may enter into possession, and that possession was thereby given. This paper is dated at Bangor, and the land is in Carmel. No possession could be given by the paper alone in fact, and no other is proved.

The possession required by the R. S., to be taken and held, is not intended to be different from that to be taken under the„statute of 1821, although that last named was to be actual. The possession required under the statute now in force, cannot be less than that which is actual, as is manifest from the case, cited for the defendants, of Lawrence v. Fletcher, 10 Metc. 344.

The report of the case shows, that no actual possession was taken by and in behalf of the mortgagee or those claiming under Mm; and consequently, the mortgage is still open for redemption.

The admission of the complainant that “ the foreclosure was out,” can have no effect whatever. There having been no proper steps taken to effect a foreclosure, the admission of the complainant was entirely nugatory. But it is manifest, that all that he intended was, that three years had elapsed from the time the paper was executed. And even his belief that the written and recorded consent would constitute -a foreclosure in three years, being erroneous, would be without effect.

There must be a decree, that the complainant may redeem the premises, on paying such sum as may be found due in equity and good conscience, and unless the parties agree upon the sum, a master must be appointed to report the amount to be paid in order to redeem the premises from the mortgage.

Shepley, C. J., and Howard and Hathaway, J. J., concurred.