Heath v. Whidden , 24 Me. 383 ( 1844 )

The opinion of the Court was by

Whitman C. J.

The ancestor to the plaintiffs purchased of the defendant, by deed- of general warranty, a farm in Sangerville, in this State, which the defendant had before mortgaged to one Sanger. The ancestor of the plaintiffs died in 1821, leaving the plaintiffs, his children and heirs, who entered into and became seized and possessed of the farm; and, in 1826, were evicted therefrom, by reason of the elder and better title thereto, held under said mortgage. . The plaintiffs, in their writ and declaration, have set forth specially the elder and better title by which they have been ousted; at the same time calling it an incumbrance. This is . at variance with the ordinary mode of declaring in case of an eviction; and we are unable to conclude that the declaration upon that ground is sufficient. If it were the plaintiffs might recover.

A mortgage is an incumbrance, and, at the same time, an outstanding title, defeasible upon the performance of certain conditions. It is in the election of the subsequent grantee of the mortgagor, with covenants against incumbrances, and for quiet enjoyment, to elect to redeem, as under the former, or to suffer an eviction, as under the latter. If he redeems his right of action will commence from the time of such redemption. If he waits for an eviction his right of action will then take place. The covenant for quiet enjoyment, running with the land, descends to his heirs. The plaintiffs, therefore, being heirs of the subsequent grantee of the mortgagor, the defendant, and having been evicted in 1826, a right of action then accrued to them, against him upon his covenant for quiet enjoyment. The defendant, under such circumstances, may show satisfaction in defence. This might be presumed from lapse of time, although the statute has provided no particular period for the purpose. If twenty years had elapsed from the time the cause of action arose, without any explanation, satisfaction would be presumed; but no period short, of that, without other circumstances tending to raise the presumption, would be sufficient. In this case but about fifteen years had elapsed since the eviction, and without evidence tending to raise a presumption of satisfaction, before the action was commenced. We do not therefore think proper to order a nonsuit; but in order that the plaintifls may obtain liberty to amend, so as to make the declaration what it should be, viz. a declaration for an eviction, we discharge the agreement and leave the cause open for further proceedings.