Bryant v. Jackson , 59 Me. 165 ( 1871 )

Daforth, J.

Tliis bill lias been before the court upon a previous demurrer. See 55 Maine, 153. All the objections there raised, with one exception, were overruled, and the plaintiff had leave to amend. It was there held, that as the plaintiff’s intestate claimed under Charles II. Linscott, the mortgager, it must appear that the assignment to him was made with the consent of the mortgagees. The amendment introduces an allegation of assent, but the bill is again demurred to, on the ground that it should appear that the assent was in writing.

"Whether the statute of frauds in such cases requires the assent to be in writing, need not now be determined. The consent of the mortgagees to the assignment, and the substitution of the plaintiff’s intestate, is distinctly set out in the amendment. This allegation, in a legal process, can be true only on the ground that such a consent as the law requires was given, and can be substantiated only by legal and competent testimony, whether by a written instrument or otherwise. Lovell v. Farrington, 50 Maine, 239.

The amendment also alleges an assent on the part of the surviving mortgagee, that the plaintiff may succeed and take the place of his intestate. This assent may be given after as well as before the assignment, but in either case cannot affect the previously acquired rights of the defendants. This assent, too, if material, and their rights and their priority must depend upon such legal testimony as may be introduced by the parties. Under the former decision, in this case, the bill as amended appears to be sufficient to require the defendants to answer.

The exceptions to the ruling of the justice and the second amendment offered are waived. Demurrer overruled.

AppbetoN, C. J.; KeNT, BáRROws, and Tapley, JJ., concurred.