Peoples' Savings Bank v. Hill , 81 Me. 71 ( 1888 )

Petees, C. J.

The facts in this case are such as would rarely happen. It appears, that the defendant held a mortgage of several parcels of land given by William F. Hilton to secure his note to the defendant, and that, a foreclosure of the mortgage being about to become absolute, Hilton arranged with the plaintiffs to furnish money with which to pay the mortgage and save a forfeiture ; that the defendant was notified by Hilton to meet him at the office of the attorney for the plaintiffs to receive the money due on the mortgage; that after getting there the arrangement was suggested by the attorney, which was conformed to, that Hilton should give his own note to the plaintiffs for the money advanced to him by them, and that the defendant should assign the mortgage to them, which they would hold as collateral security for their note against Hilton; that in the assignment, drawn by tbe attorney, which was not at all for the convenience or benefit of the defendant, who was entitled to receive the amount due on the mortgage for a naked discharge of it, was inserted a clause as follows : “and I hereby covenant with said Peoples’ Savings Bank that the within mortgage is free from all incumbrances, and that I have good right and lawful authority to dispose of the same in manner aforesaidthat several years prior to that time the" defendant had released to Hilton some minor portions of the mortgaged property by deed duly recorded, but that the fact was not known by the bank and was not remembered at the time of the assignment by the other parties; that the bank (the plaintiffs) finally foreclosed the mortgage, making the remaining property covered by it absolutely their own, in June 1887; that they then sold the foreclosed property for $3400.00, admitted to be its fair value at that time, although worth at the date of the assignment, September 5, 1882, the sum of $4000.00, which was about five hundred and fifty dollars more than the sum then advanced; and that the sum at the date of the writ due the bank on the mortgage was $4013.28.

On these facts the plaintiffs claim to recover about six hundred dollars as actual damages upon the defendant’s covenants in the assignment, while the defendant contends that, if any damages are recoverable, they cannot be more than nominal.

That the defendant was accidentally caught in an assignment which he did not suppose he was making, there can be no doubt. And the attorney who advised or dictated the transaction had not himself any idea that he was imposing a form of transfer which would be injurious to the defendant. It is well nigh a case where equity would interpose relief for the defendant, and the law should construe the facts in Ms behalf as generously as its principles can reasonably allow.

The incumbrance wMch the defendant covenanted against was an absolute disposal of a portion of the mortgaged property. The grantee of it was then in full and exclusive possession. It was not an incumbrance that could be paid off, or that was redeemable. The plaintiffs stood evicted the moment the assignment was delivered to them. The covenant was broken the instant it was made. Tliis is clear from tlie authorities. Curtis v. Deering, 12 Maine, 499; Smith v. Strong, 14 Pick. 128. A suit could then have been instituted for the damages. The mortgaged property then greatly exceeded in value the sum due on the mortgage. At the same time other property of the principal debtor was open to attachment by the bank.

The defendant received no actual consideration for binding himself to covenants. In fact, he received nothing from the bank. He received the money from Hilton. The bank loaned it to Hilton. The mortgage was taken as collateral security, not for the defendant’s but for Hilton’s debt. Had the defendant made a sale of his mortgage outright to the bank, a more rigid rule might prevail against him. But the bank did not take it as an absolute purchase either from the defendant or Hilton. They in form took it from the defendant, but in reality from Hilton through the defendant.

In the anomalous circumstances of the ease, we think the plaintiffs must be satisfied with nominal damages.

Defendant defaulted for one dollar.

Walton, Danfobth, Virgin, Emery and Haskell, JJ., concurred.