Rawson v. Hall , 56 Me. 142 ( 1868 )

Appleton, C. J.

This is areal action, brought to recover certain lots in Andover. The demandant claims title by virtue of a mortgage from the tenaut, Benjamin Hall, to James Stevens, and an assignment from said Stevens to him.

Benjamin Hall, in his specifications, denies^ the title of the demandant and sets up title in himself. He further denies the execution of the notes described in his mortgage to Stevens, and alleges that they are paid.

The other tenant, James N. Hall, justifies his possession under Benjamin Hall, and as his tenant at will. The tenants join in pleading the general issue.

This action was referred, with all other matters, to certain referees, who, after hearing the parties, "find that the defendants did disseize the plaintiff of the premises demanded, except lot numbered five, as alleged in the plaintiff’s writ, and therefore award that the plaintiff have judgment for the possession of the same, and costs of reference taxed at one hundred and fifty-two dollars and forty-seven cents, and costs of Court to be taxed by the Court.”

The award, thus far, is final and conclusive upon the main issue between the parties. The referees decide that the tenants did disseize the demandant, and award judgment in his favor.

But objections are made to the acceptance of the award because of certain subsequent findings by the referees. An award may be good in part and bad in part. An award will be sustained so far as the same is good, if it can be so disconnected from the remainder that no injustice will bo done. Orcutt v. Butler, 42 Maine, 83.

It is objected that the referees found the amount due the demandant as mortgagee. But, upon recurrence to the brief statement and pleadings, it will be perceived that the real controversy was between the demandant and Benjamin Hall, the other tenant claiming no interest in the demanded premises.

Under the reference of all demands, if the only parties thereto had been the demandant and Benjamin Hall, there can be no question that the referees would have been authorized to determine the amount for which conditional judgment should be rendered. In making their award, the referees say, they did not take into consideration any claims relating to lot No. 5, the title to which is in the tenants. There is no evidence that the referees acted upon any claims but those of the demandant as assignee of the Stevens mortgage, and of such claims as the tenant offered in reduction of the amount due thereon.

To all this the tenant, James N. Hall, could not well object, as he claimed no interest. If this finding of the referees, (for they merely found the amount due to entitle Benjamin Hall to redeem,) is to be regarded as relating to a matter not submitted, it is easily separable from the rest of the award, which is clear and decisive upon the question in controversy. Orcutt v. Butler, ubi sup.

The lieu of the mortgagee attaches equally for the debt and for the costs necessarily arising in the enforcement of his rights by a suit at law. Hurd v. Coleman, 42 Maine, 182. It is a claim which the mortgager would be obliged to pay before he would be entitled to redeem.

It is objected that the referees adjudicated upon matters-not submitted. This would be somewhat difficult, as all matters in controversy were included in the submission. Upon this subject no proof was offered before the presiding Justice. The burden is upon the party objecting to a report of referees to establish the facts upon which he relies. This he has not done. It no where appears that any injustice has been done. Though the mutual notes and accounts of Raw-son and Hall were taken into consideration, it does not appear that thereby the demandant’s claim was increased. For aught that appears, it may have been diminished, and of that he cannot complain. Without some evidence tending to show injustice has been done, the report should not be set aside. No valid reasons appear why the report should not be accepted. Exceptions overruled.

Kent, Dickerson, Barrows and Danforth, JJ., concurred.