Thornton v. Wood , 42 Me. 282 ( 1856 )

Tenney, C. J.

-The only title of the demandant to the premises, is under a levy of an execution in favor of his grantor against Phineas Pratt, made on October 12, 1851, issued on a judgment rendered September 27, 1851, an attachment having been returned on the original writ, as made on August 30, 1849.

Pratt and Mason Damon held a mortgage of the premises from the tenant, dated Oct. 7, 1847, to secure them against liability as accommodation indorsers for him on a note of $1500, held by Lucretia Jewett. This note was paid from means provided by the mortgager, without any call upon the mortgagees.

The right in equity of redeeming from the mortgage aforesaid was purchased at an officer’s sale thereof, upon execution against Wood, in favor of Scudder, Cordis & Co. by said Pratt and Noah Woods, on Sept. 30, 1848, for the sum of $800, which, with the interest thereon, was caused to be paid by the debtor as early as November 28, 1848.

So long as the mortgage to Pratt and Damon was open, the mortgagees had no attachable interest. Blanchard v. Colburn & ux., 16 Mass. 345; Smith v. People's Bank, 24 Maine, 185; Eaton v. Whiting, 3 Pick. 484. At what time this mortgage was extinguished by payment, does not appear, and is immaterial, as Pratt never had any interest therein, which was subject to attachment.

An undivided moiety of an equity of redemption in the premises was acquired by Pratt at the time of the sale thereof; but for the space of one year from the time of his purchase, the same reasons, on which the principle rests that the right of the mortgagee cannot be taken on mesne process and execution, apply with equal force to the right of redeeming from a sale of the equity of redemption, made by an officer, upon execution.

When, therefore, the return of the attachment was made upon the writ of the demandant’s grantor, against Pratt, the latter had no interest, which could be attached. And, at the time that the levy was made upon the execution obtained in that suit, if the tenant had not redeemed from the sale, and had not paid the mortgage, the legal estate was in Pratt and Damon, and the equitable estate in Pratt and Woods, after the expiration of one year from the time the latter became the purchasers. But before the levy, on the execution against Pratt, the tenant had paid the note, named in the condition of his mortgage, and had paid the sum for which the equity was purchased, and interest thereon, in season for redemption. So that at the time of the extent upon the premises, Pratt was completely divested of all title therein. Jewett v. Felker, 2 Greenl. 339. The payment of the debt secured by a mortgage may be proved by parol; and the payment of the sum to redeem an equity of redemption, sold on execution, may be shown in the same manner. In this case such proof was admitted without objection, or agreed to exist.

The claim of the demandant has no equitable or legal foundation. Judgment for the tenant.

Appleton, Rice, Cutting and Goodenow, J. J., concurred.