Bean v. Harrington
| Decision Date | 15 February 1896 |
| Citation | 88 Me. 460,34 A. 268 |
| Parties | BEAN v. HARRINGTON. |
| Court | Maine Supreme Court |
(Official.)
Report from supreme judicial court Kennebec county.
Action by Emery O. Bean, administrator, against Augustus R. Harrington. Conditional judgment for plaintiff.
Fred Emery Beane, for plaintiff.
L. T. Carleton, for defendant.
HASKELL, J. Writ of entry to foreclose a mortgage. On motion for conditional judgment the defendant seeks to reduce the amount due by deducting the damages suffered for breach of the covenants in a warranty deed to him from the plaintiff's intestate, the consideration for which was the note secured by the mortgage sought to be foreclosed. The breach of covenant set up was the right of a stranger to flow some part of the land conveyed.
To proceedings of this sort it is said that the same defenses except the statute of limitation, may be made as if the suit were upon the mortgage notes. Ladd v. Putnam, 79 Me. 568, 12 Atl. 628; Fuller v. Eastman, 81 Me. 286, 17 Atl. 67.
Partial failure of title has always been held in this state no defense to a suit upon notes given for the purchase of land. Hodgdon v. Golder, 75 Me. 293; Thompson v. Mansfield, 43 Me. 490; Morrison v. Jewell, 34 Me. 146; Wentworth v. Goodwin, 21 Me. 150; Lloyd v. Jewell, 1 Greenl. 352. A total failure may be. Jenness v. Parker, 24 Me. 289. So a partial failure, other than failure of title, may be. Ladd v. Putnam, supra; Herbert v. Ford, 29 Me. 546; Hammatt v. Emerson, 27 Me. 308. Conditional judgment for plaintiff.
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Harrington v. Bean
...action was evidently delayed in the erroneous belief that his claim for damages could be offset against the mortgage debt. Bean v. Harrington, 88 Me. 460, 34 Atl. 268. During all these years he has been deprived of the beneficial enjoyment of a part of the estate conveyed to him, while the ......
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Harrington v. Bean
...of the incumbrance was only a partial failure of consideration, and hence no defense at law to any part of the note. Bean v. Harrington, 88 Me. 460, 34 Atl. 268. Accordingly in the foreclosure suit, notwithstanding the injury done the mortgagor, the full amount of the note, principal and in......
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Crummett v. Littlefield
...of the incumbrance was only a partial failure of consideration, and therefore no defense at law to any part of the note. Bean v. Hnrrington, 88 Me. 460, 34 Atl. 268. It is a satisfaction to remark, parenthetically, that this defect in our law was promptly remedied by chapter 322 of the Publ......