Holway v. Gilman , 81 Me. 185 ( 1889 )

Emery, J.

This equity cause was reported to the law court for determination. We think the evidence shows the material facts to be according to the following narrative : One Kincaid, on September 9, 1886, mortgaged his stock of merchandise, to respondent Gilman, to secure three notes of $100, $200 and $200, maturing in two, four, and six months respectively. When the first note matured, the respondent Gilman, arranged with tho complainant Holway through a third person, for Holway to take the first note, and have the mortgage assignedyw tanto. In pursuance of this arrangement, Holway paid Gilman the amount of the first note, which was delivered to Holway, but Gilman delayed, and finally refused to execute a written assignment of the mortgage. Holway was under no obligation to pay Kincaid’s notes.

When the second note matured, Gilman took possession of all the mortgaged goods under his mortgage, claiming absolute ownership in them. He kept possession of them for some three months until after this suit was threatened against him, and then sold the goods at auction, At the time Gilman took possession, tho goods were worth more than the whole mortgage debt, though a less sum was bid at the auction sale.

Upon the foregoing facts, there can be no doubt that Holway the complainant is entitled to relief against Gilman, the respondent. Holway acquired an equitable interest in the mortgaged goods to the extent of his investment in the mortgage debt. He was entitled to share pro rata in the security. Moore v. Ware, 88 Maine, 496; Jones’ Chattel Mort. 504.

Gilman took possession of the goods for himself however, ignoring, and refusing to account for the complainant’s equitable interest. At that time, the goods were of sufficient value to pay the entire debt. Gilman appropriated the whole of them to his own use. He should be made to pay the complainant the value of his interest, which was the amount of the first note. Such, is the relief to which the complainant is entitled, and which the court in equity can grant.

Decree to be made, that complainant recover against the respondent $100 and interest from September 9, 1886, and costs, and have execution therefor.

Decree accordingly.

Peters, C. J., Daneorth, Libbey, Foster and Haskell, JJ. concurred.