Cobb v. Baker , 95 Me. 89 ( 1901 )

Emery, J.

Defenses were made to this bill by answer and by demurrer inserted in the answer, as provided by the fourteenth Chancery rule. The justice hearing the cause in the first instance, sustained the demurrer, but, with the consent of the parties, also heard the evidence and made certain findings of facts thereon. His decree was that the bill be dismissed with one bill of costs for two of the defendants. The plaintiff thereupon appealed. The bill as now drawn is demurrable and must be dismissed, for several reasons:

1. It is not “drawn succinctly and in paragraphs, numbered seriatim” — as required by the fourth Chancery rule, 82 Maine, 598. This rule is not to be disregarded. Its observance is necessary to enable the defendant to frame his answer so as to be “concise and direct in statement and to particularly answer each paragraph of the bill ” as required by the tenth Chancery rule. Its observance is also essential to that lucid and orderly statement now required in all chancery pleadings.

2. We gather from the somewhat confused statements in the bill that the plaintiff had conveyed her interest, as mortgagee in certain real estate, to the defendant Baker, and then, at his request, executed another instrument which was recorded and which she says operated to discharge the mortgage instead of assigning it, and which thus let in a creditor of the mortgagor ahead of the mortgage. This instrument she prays to have cancelled, in order that the mortgage may appear to have been assigned, and not discharged. What the actual legal operation of the instrument was, is a question of law, to be determined from the language of the instrument itself read in the light of surrounding circumstances,— yet the words of the instrument are not set out in the bill, nor is any copy of it annexed. Facts are not stated making it apparent that the instrument did operate to discharge the mortgage. The court cannot act upon her belief, or conclusions, as to the law or the legal effect of the instrument. The court must have facts alleged and proved upon which to form its own conclusion of law.

3. The instrument above referred to is alleged to have been executed at the request of the defendant Baker, who had taken a conveyance of her interest as mortgagee by her warranty deed and by a transfer of the mortgage deed and the notes to him. Having parted with all her title and interest in the mortgage, the debt and the land, she does not seem to have much concern with the effect of the instrument. Mr. Baker, the purchaser, seems to be principally and directly concerned with that question. If the instrument he asked to have executed and recorded does discharge the mortgage and let in the creditors of the mortgagor before him, he will be the one to suffer, and if relief can be had in equity he would seem to be the party who should ask and receive it.

It is suggested that if Mr. Baker should be evicted from the land by the creditors of the mortgagor, he could maintain an action against the plaintiff on her covenant of warranty, and that this contingency entitles her to maintain this bill ■ for relief. It must be borne in mind that the instrument in question was executed and recorded at the request and by tbe procurement of Mr. Baker himself. If this act of Mr. Baker has given birth to a title superior to his, it would not seem to be a breach of the plaintiff’s covenant of warranty. He can hardly recover damages of her for the consequence of acts done at his own request and procurement. A. covenantee in a convenant of warranty cannot himself create a superior title and then recover compensation therefor from the covenantor. In any event, Mr. Baker should be given the opportunity to bring a bill in his own name, and only in the event of his refusal, alleged and proved, should her bill be considered. Such request and refusal are not alleged.

Though the bill must be dismissed with costs, as decreed by the justice hearing the cause in the first instance, it may be that upon proper allegations and evidence Mr. Baker, and even this plaintiff, could show cause for the relief prayed for. Out of abundance of caution, therefore, we think the decree should be modified so that the dismissal shall be without prejudice.

Decree below is ordered to be modified, so as to be a decree of dismissal, with one bill of costs for the two defendants named, with costs of this court, but without prejudice.