Dela v. Stanwood , 61 Me. 51 ( 1872 )

Dickerson, J.

Bill m equity for the redemption of two mortgages; presented on bill, answer, and proofs.

Lewis Déla, late husband of the plaintiff, was the owner of the right in equity to redeem one-half of the described premises during coverture, from a mortgage given by his father, John.Dela, to Josiah Pennell, Oct. 3, 1844, and also of the right to redeem the whole property from a mortgage given by himself to Neal Dow, June 22, .1850.

The plaintiff, by this bill, seeks to redeem both these mortgages, or her interest therein, in order that she may have her dower in the premises.

The defendants claim that both these mortgages were foreclosed before the filing of this bill. The case finds that there was a foreclosure of the Pennell mortgage, for breach of conditions, by public advertisement, in accordance with the requirements of the statute, oil the 29th day of October, 1863, if the assignee of the mortgage, who instituted the proceedings, had a valid assignment of it. The assignment to him appears to have been given for a valuable consideration, and was stamped with a twenty-cent U. S. Internal Revenue stamp, duly cancelled.

The value of the property sought to be conveyed by the assignment of the mortgage, exceeded a hundred dollars, and, by the laws of the United States, a fifty-cent stamp, at least, should have been affixed to the assignment. Chap. 119 of the Laws of the United States, §§ 94, 95, and schedule B. But as there does not appear to have been any intent to defraud the government by the use of an insufficient stamp, the assignment was not rendered invalid on that account. Greene v. Holway, 101 Mass. 244.

The attempted foreclosure of the Dow mortgage was by advertising in a public newspaper, on the 22d day of June, 1850, under R. S. of 1841, c. 125, § 5.

The description of the premises in the notice of foreclosure, is as follows: “On the 22d day of June, 1850, Lewis Dela, of Portland, mortgaged to the undersigned, certain property particularly described in the deed, situated at the corner of Fore and India streets, in said city.” We do not think that this description is sufficient. It does not state what corner of the streets named is intended; nor does it refer to any record in which the premises are more particularly described, or by which they may be identified. In order to make the notice of any service to those who may be interested to know what premises the mortgage covers, it should afford them the information necessary to enable them to identify the property with reasonable certainty. We think that the notice under consideration is not sufficient for this purpose.

The position of the plaintiff’s counsel that the Pennell mortgage bad been extinguished by the rents and profits, received before the assignment and proceedings for foreclosure, does not appear to be supported by the evidence and the law applicable thereto.

From the view we have taken of this case, it is unnecessary to decide the question of the genuineness of the plaintiff’s alleged signature to the deed of the premises conveyed by her husband, January 24, 1851, since she was then a minor, and the deed would be voidable as to her, if she signed it. She acquired an inchoate right of dower in the premises, previous to the Act of 1863, c. 215, and cannot be divested of such preexistent right by that statute. Adams v. Palmer, 51 Maine, 496.

The defendants must account for the rents and profits received by them on the Dow mortgage, and the case must go to a master in chancery for a hearing and statement of account.

Bill sustained with costs for plaintiff. Pennell mortgage foreclosed. Bow mortgage not foreclosed. Complainant held entitled to redeem Bow mortgage. Master to he appointed.

Appleton, C. J.; KeNT, Walton, DakeoRth, and Barrows, JJ., concurred.