Campbell v. Knights , 26 Me. 224 ( 1846 )

The opinion of the Court was drawn up by

Tenney J.

— It was held by the Court in this case, 24 Maine R. 332, that the assignment of dower to the widow of Samuel Moore, before her marriage with the tenant, was a valid assignment, and must be effectual against all persons, excepting the mortgagees, and those claiming under them. The evidence upon that point at this time does not vary from that adduced on the former trial, and we see no reason for disturbing the doctrine there advanced.

The tenant, in his defence to the action, relies upon a deed given by the administrator of the estate of Samuel Moore to the demandants, of the right in equity of redeeming from the mortgage to them, therein “ reserving the widow’s dower, which has been assigned and set out heretofore.” It is insisted by the demandants, that this deed has no validity, and that they are not estopped thereby, to contest the widow’s right under the assignment, to hold against them as mortgagees.

The tenant attempted to show, that the sale of the equity of redeeming was in all respects according to the requirements of the statute; but there was no evidence, that the administrator took the oath required, before the advertisement and sale, or that return of his doings touching the same was ever made to the probate office; and that no record or document can be found, from which it appears, that any thing was done by the administrator in reference thereto, subsequent to the granting of the license, and the bond given upon receiving such license, excepting the account of administration, in which he charges himself with the sum of $220, received of Campbell & Mills for real estate sold them. These omissions were important, and are such as to render the sale and the deed inoperative and void. Stat. 1821, chap. 51, sect. 69; Parker v. Nichols, 7 Pick. 111.

The demandants have not admitted, that the husband of the tenant died seized, but claim by a paramount title under their mortgage. The administrator by virtue of his office had no right of possession of the deceased’s lands, and his deed gave no seizin. Marr v. Hobson & al. 22 Maine R. 321.

It is not pretended, that there has not been a breach of fho condition of the mortgage, and the demandants are entitled to the conditional judgment, and the tenant has the right of redemption in him.