Danforth v. Gautreau ( 1989 )

556 A.2d 217 (1989)

Judith DANFORTH, et al.
v.
Daniel P. GAUTREAU, et al.

Supreme Judicial Court of Maine.

Submitted on Briefs March 15, 1989. Decided March 30, 1989.

E. James Burke, Bell & Burke, Lewiston, for plaintiffs.

Daniel P. Gautreau, Mexico, pro se.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN and COLLINS, JJ.

PER CURIAM.

Defendant Daniel Gautreau appeals from summary judgment granted to plaintiffs Judith A. Danforth and Robert L. Chick in a mortgage foreclosure action in the Superior Court (Oxford County, Brodrick, J.). On appeal defendant argues principally that a genuine issue of material fact exists concerning the ownership of the subject property. Finding no error, we affirm.

Gautreau defaulted on a promissory note and mortgage held by plaintiffs. He also failed to pay real estate taxes on the mortgaged property from 1984 through 1987, and municipal tax liens were filed against the property. The plaintiffs filed suit against Gautreau demanding foreclosure and sale pursuant to 14 M.R.S.A. §§ 6321-6325 (1980 & Supp.1988). Subsequently, Gautreau paid the taxes and obtained a municipal tax deed, which he then sought to assert as a defense to the plaintiffs' foreclosure action. It is established, however, that "a mortgagor can not buy in a tax title and assert it successfully against a mortgagee", York County Sav. Bank v. Wentworth, 136 Me. 330, 335, 9 A.2d 265, 268 (1939), quoting Dunn v. Snell, 74 Me. 22, 24-25 (1882), Phinney v. Day, 76 Me. 83, 86 (1884), and Dalton v. Lessard, 136 Me. 94, 96, 2 A.2d 172 (1938). See also Gardiner v. Gerrish, 23 Me. 46, 50-51 (1843), Fuller v. Hodgdon, 25 Me. 243, 249 (1845). Thus, there was no genuine issue of material fact presented, and the Superior Court did not err in granting summary judgment. The defendant's remaining arguments are without merit and do not warrant discussion.

Because we find that this appeal is frivolous, we award attorney fees in the amount of $500 to the plaintiffs plus treble costs. M.R.Civ.P. 76(f).

The entry is:

Judgment affirmed.

Defendant Gautreau to pay to plaintiffs Judith Danforth and Robert Chick attorney fees of $500 plus treble costs.

All concurring.