Jackson v. Myrick , 29 Me. 490 ( 1849 )

Shepley, C. J.

The plaintiffs claim the right to redeem the estate conveyed in mortgage, by Nathan W. Sheldon to Lot My rick, Josiah Myrick, Cushing Bryant and Augustus F. Lash, on October 21, 1837.

Since the answer of the mortgagees was filed, two of them have deceased, and the plaintiffs have filed a bill of revivor. To that, the parties summoned have appeared and pleaded.

The answers of the mortgagees admit the existence of the mortgage and deny that the plaintiffs have acquired any such interest in the estate as will authorize them to redeem it.

In proof of their title the plaintiffs exhibit a judgment recovered by Jackson and Tilton against Bartlett Sheldon, and the levy of an execution issued thereon made on February 17, 1842, on the life estate of Bartlett Sheldon in the premises, and deeds, by which the estate acquired by the levy has been conveyed to them. The principal question presented in the case is, whether Bartlett Sheldon had acquired any estate in the premises before the levy was made. The plaintiffs allege, that he had in two different modes. First by a deed of release from Nathan W. Sheldon to him; and secondly, by a deed from Nathan W. Sheldon to Ebenezer D. Robinson, conveying the estate to him in trust, to permit Bartlett Sheldon and Lucy his wife, and their heirs, to enjoy the use and occupation thereof forever.

There is proof, that such a deed of release was exhibited by Bartlett Sheldon. Its existence is denied by the answers of Nathan W. and Bartlett Sheldon. It is at least doubtful, whether a power of attorney from Nathan W. to Bartlett Sheldon was not the document, which was seen instead of a deed of release. However this may be, there is no proof of the legal execution of such a release deed by Nathan W. Sheldon, and without it the title of Bartlett Sheldon would not be established. The plaintiffs failed to prove that Bartlett Sheldon acquired any title to the premises by such a deed.

It does appear, that Nathan W. Sheldon in October or November, 1841, signed and acknowledged a deed, purporting to convey the premises to Ebenezer D. Robinson in trust, and that it was placed in the hands of Bartlett Sheldon, to be by him handed to Robinson ; that Robinson received and detained it until February 15, 1842, when he signed and acknowledged it and left it in the hands of Ebenezer Webb, where it remained until the month of June, 1842, when it was handed by Webb to Nathan W. Sheldon in the presence of Robinson and Bartlett Sheldon ; and that Nathan W. Sheldon there cut his name from the deed, and carried the deed away.

The defendants contend, that this deed was never delivered as a deed; that it was deposited with Webb as an escrow to be delivered by consent of parties upon the performance of certain conditions, which were never performed.

The plaintiffs deny, that there were any such conditions, and allege in substance, that if any attempt was made to prevent its becoming legally operative to convey the estate, it was made in fraud of the creditors of Bartlett Sheldon.

The plaintiffs have recovered a judgment, at law against Bartlett Sheldon for mesne profits of the premises, declaring on their title acquired by the levy, and he is thereby precluded from again contesting their title. Bartlett Sheldon appears to have executed and delivered to Josiah Myrick a deed of release of his interest in the premisos, to Josiah and Lot Myrick, bearing date on January 5, 1846. But Lot Myrick in his answer denies any knowledge of the existence of such a deed, until recently, and that he ever accepted of such a release. There is no proof that connects him with that deed. It is therefore inoperative as it respects him, and the other mortgagees not named in it. The mortgagees not being either parties or privies to the judgment before named, cannot be estopped by it.

Nathan W. Sheldon conveyed the premises to Bartlett Sheldon by deed of release on October 20, 1843, and received from him a mortgage of the same to secure the payment of a sum of money named in the deed.

The plaintiffs therefore contend, that the Sheldons are both estopped by the judgment before named, and that whatever estops them will also estop the original mortgagees to deny, that the plaintiffs have acquired a right to redeem. This position cannot be sustained. The title of the mortgagees derived from Nathan W. Sheldon in the year 1837, is not connected with or affected by any of the transactions, which have taken place since the plaintiffs made their levy. There is nothing presented in the case, which can operate to prevent them from insisting, that the plaintiffs shall establish their right to redeem. They must therefore prove, that the deed from Nathan W. Sheldon to Robinson, became an operative conveyance.

Nathan W. Sheldon in his answer says, “ said deed was not to be delivered till said Bartlett paid or secured the payment of this defendant’s said notes to said Myricks, and also certain other sums due from said Bartlett to this defendant or for which this defendant had become liable to pay.” Bartlett Sheldon in his answer, and in a deposition taken by the plaintiffs, makes similar statements. Ebenezer D. Robinson in his answer, and in a deposition also taken by the plaintiffs, states in substance, that when he received the deed he was informed, that it was, when signed by him, to go into the hands of Eben-ezer Webb, there to remain without being delivered, until Nathan W. Sheldon came to Newcastle, and then, if Bartlett Sheldon performed certain conditions, the deed was to be delivered ; if not it was to be given up, and that the conditions were not made known to him. Ebenezer Webb, in his deposition states, that the deed was placed in his hands by Bartlett Sheldon and Robinson with a request to keep it safely and not to make its existence known, and that it was not to be delivered up unless all three that signed it were present. That he has no recollection of any conditions to be performed by Bartlett Sheldon. This testimony of Webb, if considered alone, proves no more, than that it was, after having been signed and acknowledged, left in his hands, not for the use of the grantee, but subject to the future disposition of all, who were interested in it. The whole testimony on this point fails to prove, that the deed was ever delivered to any person as an executed deed of conveyance.

If the proof were regarded as sufficient to show, that the estate was held by Nathan W. Sheldon in fraud of the creditors of Bartlett Sheldon, that would not authorize the plaintiffs to redeem it, without proof that they had acquired some title to it. Bartlett Sheldon never had any title to the estate, upon which a levy could be made, unless he acquired it from Nathan W. Sheldon, and there is no satisfactory proof, that he had before the levy, acquired any legal title in the premises.

As the plaintiffs fail to show any right to redeem, it will be unnecessary to consider the other questions presented in argument. Bill dismissed toith costs.