Marshall v. Dunham , 1877 Me. LEXIS 170 ( 1877 )

Barrows, J.

The burden is upon the plaintiff, if he would postpone the defendant’s mortgage to his own, to prove actual notice to the defendant of the existence of his mortgage. For this purpose he offers the deposition of W. S. Dunham, the mortgageor in both cases, who testifies that he told the defendant, of the mortgage to his father a few days before he made the mortgage to the defendant, in presence of another person whose testimony is not produced nor its absence accounted for. The defendant positively denies the reception of any information of the sort and testifies that W. S. Dunham told him on the contrary that there was no mortgage besides the Kittridge mortgage, which was paid and canceled on the day that the defendant took his mortgage. The nneontradicted testimony of the defendant is that his mortgage was given to secure the repayment of the money which he advanced to pay the Kittridge mortgage which was prior in time to the one given by W. S. Dunham to secure the bond for the support of his father and mother, under which the plaintiff claims. It further appears that the market value of the property was rather less than more than the amount of the defendant’s mortgage. The probability is that under such circumstances the defendant when advancing money to pay off a prior mortgage would have taken an assignment of it instead of having it canceled and taking a new mortgage had he known that the place was burdened with the support of the mortgageor’s parents. The circumstances tend to corroborate the statement of the defendant rather than that of the plaintiff’s witness. At all events, the plaintiff’ fails to produce a preponderance of evidence on this vital point.

This view makes it unnecessary to determine what effect, if any, the assignment of the defendant’s mortgage to Bisbee and the re-assignment by Bisbee to the defendant might have.

Judgment for defendant.

AppletoN, C. J., DigKersoN, DaNeorth, YikgiN and Libbey, JJ., concurred.