Morrill v. Everett , 83 Me. 290 ( 1891 )

Haskell, J.

Bill in equity to redeem lands sold on execution under It. S., c. 76, § 42, the amount for which the lands were sold, together with necessary charges and interest, having been seasonably tendered to the defendants, one being the purchaser at the sale, and the other his grantee of an undivided fraction of the same.

I. It is objected that the court has no jurisdiction of the subject-matter, and especially, because the plaintiff, at the time of bringing his bill, was not and never had been in possession of the lands.

Revised Statutes, c. 77, § 6, confers jurisdiction in equity "for redemption of estates mortgaged.” E. S., c. 76, § 42, under which the lands in question were sold, provides for their sale, as "rights of redeeming real estate mortgaged are taken on execution and sale,” and "the same right of redemption from such sales;” so that jurisdiction in equity over the subject-matter of this bill is expressly given by statute.

The actual possession of the lands by plaintiff, at the time of bringing his bill to redeem, is not required by law as a prerequisite thereto. The rights of the parties to this suit are the same as mortgagor and mortgagee; and it has always been held that the former, although not in possession of the land, might maintain his bill to redeem against the latter.' Parsons v. Welles, 17 Mass. 419; McQuesten v. Sanford, 40 Maine, 116; Pratt v. Skolfield, 45 Maine, 386; Crooker v. Frazier, 52 Maine, 405; Stinchfield v. Milliken, 71 Maine, 567.

II. It is objected that the plaintiff has no title to the lands and therefore has no right to redeem.

Courts of equity consider equitable rights and award equitable relief. With legal titles they have no occasion to deal, for, in controversies over them, there is a plain and adequate remedy at law. It is only where equities are equal that the law shall prevail.

The land sought to be redeemed is a portion of the lands reserved for public uses in the town of Mayfield. These lands are not shown to have been set apart in severalty by any statute or other proceeding, although certain specific lots seem to have been recognized and dealt with as public lots for more than half a century. The defendants claim under a sale on execution against the -inhabitants of Mayfield, levied upon certain of these public lots, the proprietors of which are stated in the officer’s return to be unknown. Their title is, therefore, obtained under R. S., c. 84, § 31, and c. 76, § 42, subject to redemption, within one year, as in cases of estates mortgaged.

The plaintiff appears to be, at least, the equitable owner of the lands he seeks to redeem. When the defendants were seasonably tendered or paid the amount of their purchase money with necessary charges and interest, their equity in the premises was ■extinguished and the plaintiff’s equitable right to redeem became the superior equity, that should give him relief in this cause. Whether his title at law is sufficient to recover the land from a ■disseizor, it is now unnecessary to decide.

III. The sufficiency of the tender is denied ; but the evidence ■clearly proves it. The money was paid into court with the filing of this bill, and can be taken out by the defendants at their pleasure.

Bill sustained with costs. Defendants to release to the plaintiff.

Peters, C. J., Walton, Virgin, Libbey and Wi-iiteiiouse, JJ., concurred.