Snow v. Pressey , 82 Me. 552 ( 1890 )

Walton, J.

Mortgages of real estate include not only those made in the usual form, in which the condition is set forth in the deed itself, but also those in which an absolute deed is given and a separate instrument of defeasance is executed. R. S., c. 90, § 1. And if the instrument of defeasance is, in other respects sufficient, the fact that it provides for a reconveyance instead of declaring that the absolute deed shall become void is immaterial. The cases are numerous in which such instruments have heen held to be valid defeasances. Bunker v. Barron, 79 Maine, 62; Knight v. Dyer, 57 Maine, 174; Smith v. Ins. Co., 50 Maine, 96 ; Bayley v. Bailey, 5 Gray, 505; Newhall v. Burt, 7 Pick. 156; and other cases cited on the plaintiff’s brief. In none of these cases was the “separate instrument of defeasance” other than an obligation to reconvey.

And to foreclose a mortgage made in either of these forms, by peaceably and openly taking possession of tbe premises in tbe presence of two witnesses, as provided in R. S., c. 90, § 3, cl. 3, tbe certificate of the witnesses must state the time of the entry. It is not enough for the mortgagee to make a certificate in which he states the time of the entry. It is not enough for the magistrate to state the time when the witnesses made oath to the truth of their certificate before him; for the oath may have been administered long after the entry. The statute expressly requires that a certificate of the “time of such entry” shall be made, signed and sworn to by the witnesses. And a certificate which omits to state the time, though in other particulars sufficiently full and accurate, is fatally defective and will not effect a foreclosure. The statute must be strictly complied with. So held in Freeman v. Atwood, 50 Maine, 473.

Such being the law, the objections urged against the decree made in the court below can not be sustained. The instrument given by the defendant to the plaintiff, at the time of the execution of the absolute deed, was clearly an instrument of defeasance within the meaning of the law, and had the effect to convert what would otherwise have been an absolute conveyance into a mortgage. It shows very clearly that the object of the conveyance was security. It declares that upon the receipt of the amount due upon a former mortgage given by the plaintiff to the defendant and one Candee, and all other legal claims due from the plaintiff to the defendant and said Candee, the defendant “will reconvey the premises” to the plaintiff. The instrument contains all the essential elements of a defeasance, and necessarily converts the absolute deed into a mortgage.

And the attempted foreclosure of the mortgage, from the plaintiff to the defendant and Candee, fails for the reason that the certificate of the witnesses to the entry of the defendant is fatally defective in not stating the time of the entry.

The record before us discloses no error in the proceedings in the court below, and the entry must bo,

jDecree affirmed.

Peters, O. J., Virgin, Emery, Poster and Haskell, JJ., concurred.