Rogers v. Wingate , 46 Me. 436 ( 1859 )

The opinion of the Court was drawn up by

Tenney, C. J.

The petitioner claims to be the owner and seized of one undivided half of the right in equity of redemption from a mortgage, in land, of which he seeks partition. Wingate claims no interest in the premises; and the other respondent insists that the title to the equity of redemption is in himself solely.

On January 12, 1854, the petitioner and one Crosby were the owners of the right in equity of redeeming the land, in equal moieties, in common and undivided. On November 19, 1855, Crosby conveyed his interest to Lord, by deed of that date, which deed was not recorded till December 13, 1855.

The right of the petitioner is derived from the attempted sale of Crosby’s right, made on July 12, 1856, to W. W. Rogers, Samuel Rogers, and Andrew P. Goodale, on an execution, issued upon a judgment in favor of Nathaniel J. Miller, against them and said Crosby, in season to save the attachment on the original writ, claimed to have been made on Dec. 6, 1855, and a sale of the purchasers’ rights, so acquired, to him, made on an execution, issued upon another judgment in favor of said Miller, against them and said Crosby, on July 9, 1857.

Unless Crosby’s title passed to the purchasers, by the first sale attempted, and that title, if acquired, vested in the petitioner by the second sale, the process must fail.

The supposed sale of July 9, 1857, was while the right of Crosby to redeem from the first sale was in full force; and, at that time, W. W. Rogers, Samuel Rogers, and Andrew P. Goodale, had no right upon which the levy could be effectually made. Kidder v. Orcutt, 40 Maine, 589, is decisive upon this point.

Other questions have been discussed in argument, which are not important to the final disposition of this petition, as the matter stands in the statement of facts.

According to the agreement of parties, made April term, 1858, modified May, 1858, the entry is to be

“ Neither party without prejudice.”

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