Androscoggin Sav. Bank v. McKenney

• Citation: 6 A. 877,78 Me. 442
• Parties: ANDROSCOGGIN SAV. BANK v. MCKENNEY.
• Decision Date: 08 December 1886
• Court: Supreme Judicial Court of Maine (US)

6 A. 877

78 Me. 442

ANDROSCOGGIN SAV. BANK

v. MCKENNEY.¹

Supreme Judicial Court of Maine.

December 8, 1886.

From supreme judicial court, Androscoggin county. Bill in equity, asking for the cancellation of a mortgage.

Heard on bill, answer, and proofs.

Frye, Cotton & White, for complainant.

Savage & Oakes, for respondent.

LIBBEY, J. This is a bill in equity praying for a decree requiring the respondents to release and cancel a mortgage given by Roland E. Patterson to Frank W. Dana, held by him as assignee. The case comes before this court on bill, answer, and proofs. The facts material to the determination of the case are as follows: On the fourth day of April, 1883, said Patterson mortgaged the land in controversy to said Dana to secure the payment of $1,760. On the same day he mortgaged to him certain personal property to secure the payment of the same debt. On the sixth day of April, 1883, the complainant commenced an action of assumpsit against Patterson, and attached his real estate, and prosecuted its action to judgment, and within 30 days from the rendition of judgment duly levied its execution on the land embraced in said mortgage. On the second day of November, 1883, William Lydston bought of said Patterson the personal property embraced in the mortgage to Dana, subject to the mortgage, "which said Lydston assumes and agrees to pay." On the eighth day of said November Lydston paid to Dana the balance then due on the debt secured by said mortgages, amounting to $1,465.78, and took from him an assignment of both mortgages. Before the assignment, Dana had taken the necessary steps to foreclose the personal mortgage, and the foreclosure became absolute soon after. At the time of the assignment and foreclosure the personal property was worth more than the amount due on the mortgage debt. It came into the possession of Lydston, and was converted by him to his own use. On the fifteenth day of September, 1885, Lydston assigned the mortgage of the land to the respondent.

We are of opinion that, upon these facts, the mortgage debt had, in law, been fully paid, and that the respondent took nothing by the assignment. Lydston, by the terms of his bill of sale of the personal property, assumed the debt, and agreed to pay it. He did pay it to Dana. But the respondent claims that it was agreed verbally between Patterson and Lydston, at the time of the purchase of the personal property by Lydston, and that this agreement was a part of the transaction...