Stetson v. Everett , 59 Me. 376 ( 1871 )


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  • Kent, J.

    The mortgage was foreclosed by publication, unless it lias been prevented, and the right of redemption kept open by acts or admissions of the parties interested. It may be adinitted that a mortgage, in such a case, may be kept open by the express agreement of the parties, or by facts and circumstances, clearly proved, from fthich an agreement to that effect may be. satisfactorily inferred. Fisher v. Shaw, 42 Maine, 39; Winchester v. Ball, 54 Maine, 560; Lawrence v. Fletcher, 8 Met. 153.

    But the prima facie conclusion, when a legal foreclosure is shown, is that it was so intended, and that it must so operate, until proof is adduced which overcomes this presumption. It must be shown that the holder of the mortgage has either expressly agreed to waive, for a time or indefinitely, the attempted foreclosure, or has so conducted in reference to it, with other parties interested, that the law will infer such agreement, or hold him to have abandoned his attempt.

    We cannot find, in the evidence reported, sufficient proof of an intention on the part of Mr. Blake to yield his title by foreclosure; or to keep open the mortgage as a mortgage, unforeclosed. He, it is true, gave to Trickey after foreclosure an obligation that upon pay-*381rncnt of one-balf of 84,277.95 (a fixed sum), being amount of the mortgage upon this whole tract, and interest annually within three years, lie would release such title as he had to one-half of the tract, “by virtue of the foreclosure of my mortgage.” He gave a like agreement to Nathan Weston for the other half, in which he agrees to convey to him “ the title acquired by me by the foreclosure of my said mortgage.” And to make it more explicit, he adds: “ it is the foreclosure title only which I hereby agree to convey,”

    Subsequently Mr. Blake, having obtained a release from Nathan Weston, gave a bond to Rufus Dwinel, whose estate is here represented by his executors, conditioned to release to him all his title to one-half of the tract, “ my title being only a foreclosure or mortgage title, on payment of balance due on the mortgage notes, said balance being $2,698.32,” with a further proviso, that Dwinel shall also pay all sums of money, that he may be owing to said Blake or to the Merchants bank.

    In all these agreements in writing, Mr. Blake refers to his title as one acquired by the foreclosure. He does not allude to the mortgage as still open for redemption, but sedulously guards against any such inference from his acts. The most that can bo alleged as the result of his acts and agreements is, that he was willing to sell his foreclosed title, for a sum equal to the amount of the notes which he hold, which were secured by the mortgage. It seems to us that a man may do that, without thereby relinquishing his title by foreclosure. He may be willing to sell this title to the mortgager, for a less sum than he would to others, from motives of friendship or from some parol understanding, honorary in its character, provided the payments be promptly made at the day fixed, and yet not be willing to keep the legal right of redemption open indefinitely on the mortgage. Holmes v. Gerry, 55 Maine, 355.

    It is true that Mr. Blake, in his statement (made evidence in the case) says lie felt sure of his pay, and that “ he never intended as against Trickey, Weston, or Dwinel, or any other party interested in the right of redemption, to take advantage of the foreclosure to claim a forfeiture of the land to mo. I only intended *382to claim the amount due me on the mortgage and agreed interest, and this was the amount paid to me by the executors of Dwinel, and I released to them as I had agreed with Dwinel.”

    But ho adds, “ Nor have I ever intended to impair the force of my obligation to Dwinel to release the foreclosure title, by any act in which he was not a party, or the expression of any intention of which he was not cognizant; I only state what I did and what I should not have done, upon the happening of an imaginary contingency.”

    Taken together these statements seem to leave the matter as it stands in the written agreements, and to amount simply to a restatement of the fact that he was willing to release hjs title by fore' closure for the sum named, to those interested in the mortgage. This right he finally gave to Mr. Dwinel alone. This view is confirmed by the refusal of Mr. Blake to accept the $20 left with him by Brastow, to go toward one-eighth of Gordon Brook tract. Mr. Blake says: “ I told Brastow I should not indorse it on notes, or otherwise appropriate it. I told him I could not indorse anything he paid me on the mortgage notes, as I had given Mr. Dwinel an obligation to release my foreclosure title, better or worse, to him, upon payment of the notes by him. I could not therefore indorse it without Dwinel’s consent.” The payments of interest indorsed on the notes appear to have been made by Dwinel alone, and are simply a mode for easily determining the amount due under the bond, whenever Dwinel was ready to pay the sum named.

    Dwinel had a bond for a conveyance of this foreclosed title, not a right to redeem the mortgage. In the transaction he was acting for himself, and not as trustee or agent of others, who had been interested in the mortgage, before foreclosure.

    It is not the case of the redemption of a mortgage by one co-tenant, or one of several joint mortgagers. It is simply the case of one of several distinct parties, who had been interested as mortgagers, under different interests, obtaining for himself a new and independent title to the premises, which had become vested in the mortgagee by foreclosure. This he might lawfully do, without *383becoming the trustee of tbe other parties, or being in any way accountable to them.

    We do not see bow, upon the case presented, the plaintiffs can maintain this action. According to the agreement of the parties, Plaintiffs nonsuit. therefore, the entry must be

    Appleton, C. J.; WaltoN, DicKEbsoN, and Danfoeth, JJ., concurred.

Document Info

Citation Numbers: 59 Me. 376

Judges: Appleton, Danfoeth, Dickebson, Kent, Walton

Filed Date: 7/1/1871

Precedential Status: Precedential

Modified Date: 11/10/2024