Bailey v. Knapp , 79 Me. 205 ( 1887 )

Peters, C. J.

This is a petition for partition, and is to be governed by legal and not equitable principles.

The respondent contested a portion of the petitioner’s apparently legal title, upon the ground that one of the deeds under which he claimed his portion of the land was no more than an equitable mortgage, and that the debt had been paid. The judge correctly ruled that the attempted defense was inadmissible in this proceeding. The question whether the deed is an equitable mortgage or not belongs to the equitable jurisdiction to determine; cannot be determined at law. Jewett v. Mitchell, 72 Maine, 28.

Adam Blackman, while owner of one half of a tract of land conveyed to his son all his right and title in the half of the land which was mortgaged by one Band to Amasa Stetson — which was the other half. The respondent contended that by the deed the son took a moiety of the land, whether it was the Band half or any other half; that he could take an unencumbered half. The very statement is its own refutation.

Exceptions overruled.

Walton, Danforth, Emery, Foster and Haskell, JJ., concurred.