Look v. Horn , 97 Me. 283 ( 1903 )

Strout, J.

On March 31, 1876, Benjamin Horn and Oliver P. Horn received conveyance of a farm in Fairfield from Samuel Kim-ball, ánd on the same day the Horns mortgaged the farm to Kim-ball to secure the payment of five hundred and thirty-four dollars and fifty cents of the purchase money. Benjamin occupied the farm thereafter, except a piece conveyed to his son Calvin, till his conveyance to his son Martin, one of the defendants, on May 12, 1898, since which time Martin has been in possession. Benjamin and his son paid the mortgage to Kimball, and had it discharged of record on January 23, 1895. Oliver never paid anything and never oecupied the farm. Oliver R. Horn, by deed of January 27, 1881, undertook to convey one-half of the farm to the plaintiff, but the ’mortgage to Kimball being then in force, Oliver’s deed conveyed only his one-half of the equity of redemption from that mortgage.

The plaintiff seeks in this action to recover one-half of the rents and profits of the farm from January 26, 1895, to January 26, 1901.

Benjamin Horn and his sons having paid that portion of the Kim-ball mortgage which should have been paid by Oliver, are entitled in equity to have Oliver’s one-half of the farm subjected to its payment. This right is unaffected by the discharge of record of the mortgage. It may be treated in equity as still subsisting for the protection of Benjamin and Martin, or Oliver’s one-half may be regarded as subject to a lien for the amount paid on the mortgage for Oliver’s benefit. In no event can the plaintiff, as Oliver’s grantee, recover rents and profits until Benjamin and Martin have been re-imbursed their payment for Oliver, either from the rents and profits of Oliver’s one-half, or in some other manner.

It is very clear from the evidence that the net profits from the farm for the time covered by plaintiff’s claim have been little, if anything, in excess of necessary repairs and taxes — certainly wholly insufficient to re-imburse the payment for Oliver on the mortgage. Whatever net profits defendants may have received from one-half of the farm, they are entitled to hold towards their re-imbursement. Until that is accomplished plaintiff can have no claim upon the rents and profits.

Judgment for defendants.