Atwood v. Moose Head Paper & Pulp Co.
| Citation | 85 Me. 379,27 A. 259 |
| Parties | ATWOOD v. MOOSE HEAD PAPER & PULP CO. |
| Decision Date | 04 April 1893 |
| Court | Maine Supreme Court |
(Official.)
Report from supreme judicial court, Somerset county.
Action by Stephen B. Atwood against the Moose Head Paper & Pulp Company for flowing plaintiff's land. Heard on report.
Plaintiff received his title by deed from Southard Walker, November, 1876, and mortgaged the premises back on the same day to Walker, to secure the purchase money, $800. This mortgage remains unpaid.
The premises were sold on execution, at sheriff's sale, three times, viz. they were twice sold on June 15, 1891, and sold again on December 19, 1891.
On March 24, 1892, the plaintiff paid the grantees under the sheriff's deeds of June 15, 1891, the amount for which the premises sold; and on March 25, 1892, he paid the amount of the sale of December 19, 1891.
The defendant commenced the construction of its dam in June, 1889, and completed it in February, 1890. There was no interruption of the water or flowage of the plaintiff's premises in the year 1889. The defendant, by means of the dam built in the year 1889, flowed the premises of the plaintiff during the seasons of 1890 and 1891.
The plaintiff has had possession of his farm from the time of his purchase to the present time. No claim for flowage has been made by the grantees in said deeds.
J. J. Parlin and Walton & Walton, for plaintiff.
Webb, Johnson & Webb, for defendant.
The question is whether a mortgagor, while he remains in possession, has such an estate in the mortgaged premises as will enable him to maintain a complaint for flowage under our mill act.
We think he has. The prevailing doctrine at this day is that, as against all persons except the mortgagee and those claiming under him, the mortgagor is regarded as the owner of the land so long as he remains in possession of it in equity, the mortgagor is deemed the owner, and the mortgage is considered as nothing more than security for the debt. The mortgagor has a right to lease or sell the land, and to deal with it in every particular as owner, so long as he is permitted to remain in possession, subject only to the rights of the mortgagee. "The courts of law have also, by gradual and almost insensible progress, adopted these equitable views," and, "except as against the mortgagee, the mortgagor, while in possession and before foreclosure, is regarded as the real owner, and a freeholder, with the civil and political rights belonging to that character." Such were the views expressed by Chancellor Kent, and sanctioned by Chief Justice Whitman, in Wilkins...
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Twin City Power Co. v. Savannah River Elec. Co.
... ... ... Atwood v. Moose Head Paper & Pulp Co., 85 Me. 379, ... 27 A ... ...
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Allis-Chalmers Co. v. Central Trust Co. of New York
...of New York and the laws of other states. For all practical purposes, he is no more than the holder of a lien.' See Atwood v. Paper and Pulp Co., 85 Me. 379, 27 A. 259. chief reliance of the appellants is Morse v. Dole, 73 Me. 351. A careful examination of this case shows that it does not d......
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Pettengill v. Turo
...424, 427; Wilkins v. French, 20 Me. 111, 117; and while in possession he may maintain a complaint for flowage. Atwood v. Moose Head Paper & Pulp Co., 85 Me. 379, 380, 27 A. 259. Until the mortgagee chooses to take possession, the mortgage gives him no right to do any act whereby the mortgag......
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Lambert v. Allard
...language and perceives the real nature of the transaction. Hawes v. Nason, 111 Me. 195, 88 A. 538, Ann. Cas. 1915D, 1095; Atwood v. Paper Co., 85 Me. 380, 27 A. 259. As to third parties the mortgagee's interest before completed foreclosure is a mere pledge or lien. Smith v. People's Bank, 2......