Stratton v. Cole , 78 Me. 553 ( 1887 )

Emery, J.

In this real action both parties claim title from the state, under deeds from the land agent. The deed dated April 4, 1834, from the land agent to the Pierces, under whom the demandants claim, is the earlier deed and is to be first considered.

The demandants contend that by this deed the fee in this land passed from the state to the Pierces ; that the state only retained a right to recover back the fee, in case payment was not made. They cite authorities tending to establish the proposition that in such caries, where the fee once passes, it does not revest in the state by the mere failure of the grantees to perform the condition ; that there must be some affirmative proceedings by the state, by suit, by inquest of office, or some other, to transfer the fee and seizin back to the state; that until such proceedings, the fee is still in the grantee, though the conditions remained unperformed. They contend further that if the condition in this deed was a condition precedent, it was changed into a condition subsequent, by the extension by the state of the time for the performance of the condition, and thus was brought within the rule above stated.

It is necessary, therefore, to ascertain what estate in this land passed to the grantee under that deed, and what estate remained in the state. The state was bound by such deed only as it authorized the land agent to give, and the grantee could only receive such estate in the land as the state authorized the land agent to convey. The grantee of the state and those claiming under him, would be bound by any existing statute at the time of the sales and the deeds. The effect of the deed must be judged by the statutes, as well as by the terms of the deed.

The earliest statute, act of 1824, ch. 258, required one-half cash, and "a good and sufficient surety” for the balance before giving the deed. The act of 1828, ch. 393, reserved for the state a lien on all timber lauds, and required "good sureties,” or notes and a mortgage in the case of other sales. The act of 1831, ch. 510, required in the case of settling lands, sufficient personal security, or notes secured by a mortgage of the land, before giving the deed. The act of 1832, ch. 30, § 2, which was in force at the date of this deed, provided that " in the sales of land by the land agent, the lion which the state retains in the land as security for the payment of the purchase money, may be expressed in the deed of conveyance from the state, instead of taking a mortgage thereof.”

At the first, no deed could be given without cash, or good persona] security. Then a mortgage back was substituted for personal security. Then for greater convenience, this mortgage security was to be expressed in the deed from the state, instead of a separate and additional instrument. This course saved expense and the inconvenience of recording and preserving large files of mortgages.

It seems clear that, however expressed and in whatever instrument, the lien or estate to be retained by the state, was at least as effectual and great as that of a mortgagee. To retain a lien for the purchase money, is to retain the legal title, the proprietas, though the thing may go into the care of the vendee. Oakes v. Moore, 24 Maine, 214. The various' legislative acts show that the state was to retain this much. Whatever language the land agent used in writing the deed, it could convey no more than the statutes contemplated, no greater estate than that of a mortgagor. Such, indeed, seems to have been the nearly contemporaneous construction of these statutes. In the revision of 1841, they were expressed in this language, " and the liens above mentioned, being so retained by the terms of the land agent’s deed, shall be equivalent to a mortgage of the same land to the state.” The land agent’s deed we are considering was drafted upon the same theory. There is in it no provision for a reverter. It provides that if the notes are paid, " then this to be a good and sufficient deed to convey said lots ; otherwise to be null and void, and said lots to be and remain the property of the state.” It is analogous to a bond for a deed, authorizing the obligee to enter, but carefully retaining the title until payment.

That the legislature understood that the fee was unconveyed, that no proceedings were necessary to revest it in the state, is evident from the act of 1842, eh. 33, § 4. This act provided that all lands which had been sold by the land agent prior to August 1, 1841, (including this sale of course) might be declared by the land agent to be forfeited lands, upon the non payment of the notes given for the same, etc. It was also provided in the same act that the land agent might sell.such lands.

It appears that the last two notes named in this deed have never been paid. It also appears that this land was afterwards placed by the land agent upon the list of " Forfeited Lands ” in the land office, and conveyed by the land agent, by deed of October 7, 1845, under the act of 1842. The grantee under this last deed went into possession of the land, and his title and possession have come to the tenant in this action. A mortgagee in this state has the legal title, and if he or his assigns be in possession, the mortgagor can not recover possession until he shows affirmatively a performance of the condition. Gilman v. Wills, 66 Maine, 273; Jewett v. Hamlin, 68 Maine, 172.

If our construction of the statutes and deeds is correct, this tenant can not be evicted by these demandants, so long as the purchase money remains unpaid. Under this construction, the extensions of time of payment, allowed in the subsequent resolves, did not destroy the lien, did not pass the title. Such extensions perhaps waived a forfeiture, extended the time for redemption, but did not extinguish the state’s legal title, and leave to it only a right of action.

Judgment for the tenant.

Peters, C. J., Walton, Daneortíi, Foster and Haskell, JJ., concurred.