Bartlett v. Fellows , 47 Me. 53 ( 1859 )

The opinion of the Court was drawn up by

May, J.

The right of the mortgager to redeem the premises described in his bill is not denied. The only question discussed in the long and able arguments of counsel, is, whether the notes secured by the mortgage' have been fully paid. Such payment is charged in the bill, and the respondent in his answer admits all the specific payments alleged to have been made, except that of §30, under date of August 1st, 1857. This he denies. If this payment was made as alleged, then nothing is due upon the mortgage, and the mortgager is entitled to a release of all the .mortgagee’s right and title in the premises with costs. On the other hand, if such payment has not been made, then the mortgager will be entitled to redeem only upon the payment of the balance found due, together with the respondent’s costs, who, in such event, will appear to have been without fault. Bourne v. Littlefield, 29 Maine, 302.

Whether any thing is due upon the mortgage, and, if any thing, how much, are questions which, in cases like the present, where there is a conflict of testimony, and an attempt to impeach the witnesses upon the one side and the other, can be much more appropriately determined by a master’, or, if the parties so agree, by a jury, than by the Court when sitting in bank, where its members must necessarily be deprived of the appearance of the witnesses upon the stand, which often furnishes a test to a master, or a jury, by which they are enabled to ascertain the truth. Jewett, in Eq., v. Guild, 42 Maine, 246. There being, in this case, no agreement of the parties to submit the matter to a jury under the direction of the Court, the cause must be referred to a master to determine what sum, if any, is due to the respondent upon the mortgage set forth in the complainant’s bill.

Tenney, C. J., and Appleton, Cutting, Davis .and Kent, JJ-., concurred.