Webster v. Calden , 56 Me. 204 ( 1868 )

Appleton, C. J.

The plaintiff claims title under William M. Mann, and that he entered into possession of the island in controversy, in April or May, 1864, and retained possession until July, 1865.

It is in proof that William M. Mann, on the 9th of Nov., 1853, mortgaged the demanded premises to one Thomas Spaulding, to secure a note given by him to said Spaulding for two hundred dollars, payable on demand with interest, of the same date as the mortgage.

Thomas Spaulding deceased, and John W. Sawtelle was appointed administrator on his estate, Feb. 4, 1862.

The tenant produces the note of Mann to Spaulding, indorsed, and justifies his entry under a verbal license from the administrator of Spaulding, the mortgage having never been assigned, though in the possession of the tenant.

The plaintiff offered evidence of the declarations of Spaulding, made in 1855, to the effect that the mortgage had been paid up. This evidence'was excluded and the question presented is whether it was rightfully so excluded.

It is a general pi'esumption of law that indorsed paper is indorsed before its maturity. The party who denies this is bound to prove it, and, without such proof, he cannot be let into the equities of his defence. 2 Parsons on Notes and Bills, 9 ; Hutchinson v. Moody, 18 Maine, 393. The plaintiff having failed to negative this, was not entitled to offer in evidence the declarations of Spaulding. He should have shown that the note was not indorsed before maturity, or was in his hands at the time the declarations offered were made. This he has failed to do. They were therefore properly excluded.

The statements made by Amps A. Mann and William M. Maun, made when they said they were returning from the disputed territory, relative to Amos’ title and interest in it, were properly excluded. It does not appear that they were relevant or material. Both were admissible witnesses and their declarations are mere hearsay.

When a mortgagee is dead, the proceedings to foreclose must be in the name of his executor or administrator. The lands mortgaged are assets in their hands before foreclosure, and "when they recover seizin and possession thereof, it shall be to the use of the widow and heirs, and devisees or creditors of the deceased, as the case may be.” R. S., 1857, c. 90, §§10 and 11. If nothing is due on the mortgage, no action can be maintained to obtain possession of the mortgaged premises, § 10. . An administrator of a mortgagee of real estate, who has obtained judgment and possession by foreclosure, can maintain trespass against the heir at law of the mortgagee for cutting wood on the mortgaged premises. Palmer v. Stevens, 11 Cush, 147. A mortgagee’s title vests, on his decease, in his administrator or executor, and a quitclaim by the heir at law before foreclosure conveys no title to his grantee. Taft v. Stevens, 3 Gray, 506.

Where a mortgage is given to secure one or more notes, and the note or notes is transferred without the mortgage, the mortgagee holds the mortgaged estate in trust for the payment of all the notes it was given to secure. Moore v. Ware, 38 Maine, 496. In case of death, the mortgage vests in the administrator or executor of the mortgagee, by whom alone the suit could bo brought for the benefit of the assignee to foreclose the mortgage.

Exceptions overruled. —Judgment on the verdict. ■

Cutting, Kent, Walton, Dickerson and Danforth, JJ., concurred.