Brooks v. Goss , 61 Me. 307 ( 1872 )

DicKERSON, J.

This was an action of trespass de bonis aspor-tatis brought by the executor of the last will and testament of the mortgagee of the premises from which the timber was taken.

The counsel for the defendants contended that the action was improperly brought in the name of the executor; but we think this objection is not tenable.

Real estate held by an executor in mortgage is deemed personal assets held by him in trust for the persons who would be entitled to the money, if paid 5 when paid, he may execute a release of the estate and account to the cestui que trust for the sum received, and if not paid, he may sell it, as lie could personal estate, and assign the mortgage and debt. R. S. of 1857, c. 65, §§ 22, 23.

The first two memoranda admitted in evidence, against the defendants’ objection, were elicited on cross-examination of their witness. That witness testified on direct examination that the mortgagee gave the mortgager, the witness’ son, a parol license to sell the timber sued for, and also that he offered the mortgagee $1,350, the amount of the mortgage note, which the mortgagee declined to take, saying “ she did not know what to do with the money.” The testimony shows that the chief value of the land was in the timber, and that the mortgagor, at the time of the pretended tender of 11,350, was poor. The witness testified that the original memoranda were made at the time of their date. Those memoranda related directly to the two grounds relied on in defense, license and payment of mortgage note. In connection with the other evidence they had a material hearing upon the credibility of the witness, and therefore were clearly admissible.

The other memorandum was immaterial, _and could not have damaged the defendants : besides, the same testimony was drawn out on the direct examination ; nor have they any valid ground of complaint that the court restricted the application of the several memoranda in the manner specified in the exceptions.

As the executor did not offer himself as a witness the defendants were properly excluded. The other rulings were also unobjectionable.

The cutting and carrying off the timber were not seriously controverted. The defendants relied upon a parol license and payment of the mortgage debt. These questions were fairly sub-mitte’d to the jury, and it was their province to determine them. When we' consider the conflict between Bailey arid Gray, the defendants’ witnesses, in regard to the latter’s borrowing the money of the former to pay the mortgage note with, and the improbability of the testimony of the mortgager and his mother, it is not strange that the jury discredited the testimony upon the two grounds of defense, and returned a verdict for the plaintiff.

Exceptions and motion overruled.

Appleton, C. J.; Walton, Barkows, Daneorth, and Vir--gin, JJ., concurred.