Wilson v. Soper , 44 Me. 118 ( 1857 )

Hathaway, J.

E. G-. Allen, in November, 1843, conveyed in mortgage, to Pingree and Coe, a lot of land in Stetson, including the demanded premises, which mortgage was duly recorded, and was subsequently assigned to Lewis Barker in September, 1854, and the assignment thereof recorded. In September, 1853, Shaw & Merrill, creditors of Allen, attached on mesne process his equity of redemption of the mortgaged premises, which was, in due course of legal proceedings, sold on their execution against Allen, at sheriff’s sale, and purchased by them in July, 1856, and in August, 1856, was conveyed by.them to the tenant, wlio was in possession of the demanded premises by permission of Barker, the assignee of the mortgage.

The demandant claims title as assignee of a mortgage made by D. L. & C. W. Whiting, to E. G-. Allen, in April, 1850, which, by mesne conveyance was duly assigned to him in February, 1856, and on the day of the sale of the equity of redemption he tendered to Barker the amount due on the mortgage to Pingree and Coe, and Barker received it; but that could not effect the tenant’s rights, for his title to the right of redemption was, by virtue of his deed from Shaw & Merrill, by whom it had boon acquired, in pursuance of their previous attachment.

The demandant claims that Allen conveyed to the Whitings on the day of the date of their mortgage to him, and that their mortgage was made back to him to secure the purchase money, and that he therefore, as assignee of that mortgage, had the right of redemption, which could not be defeated by the subsequent attachment of Shaw & Merrill.

But the case finds that the record title to the equity of redemption was in Allen, when Shaw & Morrill attached, and furnishes no legal evidence of any deed, or notice to them of any deed from Allen to the Whitings, which could defeat their attachment of the equity as the estate of Allen. 23 Maine R., 165, 170, 246, cited by defendant's counsel. Spofford v. Weston, 29 Maine R., 140; Abbott v. Sturtevant, 30 Maine R., 40.

Demandant nonsuited.