Higgins v. Smith , 118 Me. 312 ( 1919 )

Philbrook, J.

This is an action of forcible entry and detainer, coming to this court on an agreed statement of facts. Counsel on both sides, in argument, have travelled slightly beyond the boundaries of the agreed statement, but we must be limited to the record.

According to that record, the chronology of the case appears to be as follows: The title to the premises was originally in Fred P. Smith. He died March 7, 1913,'leaving a widow, the defendant in this action, and three minor children. On October 12, 1913, this defendant caused the buildings to be insured in her own name. On November 10, 1913, the dwelling house was destroyed by fire and in 1914 the defendant built the dwelling house now upon the lot. On March 8, 1915, the defendant mortgaged the lot and buildings thereon, with the usual covenants of warranty, purporting to convey the whole title, to Edgar Small, This mortgage was duly recorded. On November 19, 1915, this mortgage, and the debt thereby secured, were assigned by Small to the plaintiff, which assignment was duly recorded. The mortgage was foreclosed February 3,1917, by publication.

The notice of foreclosure was forwarded to the Register of Deeds who made the following record: “County of Washington, ss; Machias, Mame, March 2, 1917. I hereby certify that the foregoing notice has been published three weeks successively in a newspaper called the Machias Republican, in the County of Washington, the first publication bearing date the third day of February, 1917, and the last publication bearing date of the seventeenth day of February, 1917, and that the same was entered for record on the second day of March, 1917.” Thus it will be observed that the certificate failed to show that the newspaper was “published and printed in whole or in part in the county where the premises are situated.” The defendant says this omission makes the foreclosure proceedings fatally defective. The plaintiff says that the omission may be cured by. a deposition from the Register of Deeds to the effect that the omission was inadvertent. The printed record contains no such deposition, nor is there anything in the record to show that such a deposition is properly before us. Since a defective record is not notice in cases of foreclosure by publication, it must follow that as the case now stands before us, the foreclosure proceedings are null and void. Stafford v. Morse, 97 Maine, 222; Bragdon v. Hatch, 77 Maine, 433; Hollis v. Hollis, 84 Maine, 96; Savings Bank v. Lancey, 93 Maine, 422; Wyman v. Porter, 108 Maine, 110.

Plaintiff nonsuit.