Belfast Sav. Bank v. Lancey

• Decision Date: 02 January 1900
• Citation: 93 Me. 422,45 A. 523
• Parties: BELFAST SAV. BANK v. LANCEY.
• Court: Maine Supreme Court

45 A. 523

93 Me. 422

BELFAST SAV. BANK

v. LANCEY.

Supreme Judicial Court of Maine.

Jan. 2, 1900.

(Official.)

Report from supreme judicial court, Waldo county.

Action by the Belfast Savings Bank against William K. Lancey. Case reported, and judgment for defendant.

This was an action of assumpsit on two promissory notes, of $2,000 each, dated February 15, 1875, given to the plaintiff by W. K. Lancey, and which, with other notes, amounting in all to $10,000, were secured by mortgage of real estate in the city of Augusta, Kennebec county. The action was defended by the administrators of said Lancey's estate, who pleaded several defenses: (1) That the notes have been paid; (2) that the discharge of said Lancey in bankruptcy, under the act of March 2, 1867, was a bar; (3) that said Lancey's death, and the represent ing of his estate insolvent in the probate court, followed by the issuing of a commission in insolvency, had dissolved an attachment of all of said Lancey's real estate In Somerset county, made by the plaintiff more than four months prior to the proceedings in bankruptcy, and which attachment the plaintiff sought to enforce by a judgment in rem.

Argued before PETERS, C. J., and EMERY, HASKELL, WISWELL, and SAVAGE, JJ.

R. F. & J. R. Dunton, for plaintiff.

J. Williamson, S. S. Hackett, and J. W. Manson. for defendant.

WISWELL, J. On February 15, 1875, the Belfast Savings Bank loaned to William K. Lancey the sum of $10,000, for which Lancey gave to the bank his five promissory notes, for $2,000 each, the first payable in six months' time, and the others, respectively, at intervals of six months thereafter, with interest payable semiannually, secured by a mortgage upon real estate situated in Augusta.

After three of these notes had become due, on November 11, 1876, this action was commenced upon the first two notes that matured, and an attachment made thereon, November 13, 1876, of all of the real estate and interest therein which Lancey had in Somerset county. On November 17, 1876, the plaintiff commenced, or attempted to commence, a foreclosure of the mortgage given to secure these five notes, by publishing on that day a notice of foreclosure in a newspaper.

On April 13, 1878, considerably more than four months subsequent to the attachment of his real estate in Somerset county, above referred to, Lancey filed his voluntary petition in bankruptcy in the United States district court for this district. He was subsequently adjudged a bankrupt and an assignee was duly appointed, who, on May 21, 1885, in pursuance of a license granted by the district court, sold the real estate attached upon the writ in this suit, subject to the attachment. On June 2, 1879, Lancey was duly granted a discharge by the district court from all debts provable against him in bankruptcy.

William K. Lancey died—the exact date is not stated—within one year prior to the April term, 1899, of this court, in Waldo county. Letters of administration were duly granted by the probate court in Somerset county, which court had jurisdiction of his estate; and at the January term, 1899, of the probate court in that county, the estate of Lancey was duly adjudged and decreed Insolvent, and commissioners in insolvency appointed.

At the January term, 1899, in Waldo county, the plaintiff's counsel filed a motion setting out the fact of the attachment of real estate upon the writ, specifically describing the different parcels of real estate that were thereby attached, the bankruptcy proceedings above referred to, and asking to have the amount due upon the notes in suit determined, and that it might have special judgment therefor and execution against the property attached. By agreement of the parties, the question of what was the fair market value of the real estate described in the plaintiff's mortgage, on November 17, 1877, was submitted to the jury, who found that such value on that day was $11,000. The case was then reported to this court to determine the rights of the parties.

The counsel for the defense assigns several reasons why the plaintiff should not have the Judgment he asks for. He claims that a foreclosure of the mortgage by publication was commenced on November 17, 1876; that by operation of law, and in pursuance of an agreement to that effect contained in the mortgage, the mortgage became fully foreclosed in one year therefrom; and that the value of the mortgaged premises, as ascertained by the jury, although not sufficient to satisfy the entire mortgage debt at that time, should be applied in payment of the three notes that were due at the time the forclosure was commenced, and in payment of the interest due at that time upon all of the notes. Such an application would much more than pay the two notes sued in this action.

This involves the question as to whether the proceedings commenced by the bank on November 17, 1876, for the purpose of foreclosing the mortgage, were sufficient for that purpose. The notice of foreclosure was published in a newspaper that was both printed and published in the county where the mortgaged premises were situated, but the certificate of the register of deeds reads: "Received, Nov. 30, 1876, and copied from the Maine Standard, a public newspaper, published weekly at Augusta, Maine," etc. The statute in force at that time required a mortgagee, who desired to foreclose his mortgage by publication, to give public notice in a newspaper printed in the county where the premises are situated, if any. This certificate does not state that the newspaper referred to was printed in that county.

This court has in several instances decided that such a certificate was fatally defective. Blake v. Dennett, 49 Me. 102; Bragdon v. Hatch, 77 Me. 433, 1 Atl. 140; Hollis v. Hollis, 84 Me. 96, 24 Atl. 581. But it is urged in behalf of the defense that these cases are not conclusive, because this case differs from those cited in this respect: that here the newspaper was in fact printed in the county; and it is claimed that this fact may be shown by parol evidence, and that the statute does not require any certificate from the register of deeds, but only makes it prima facie evidence of the facts stated.

We do not think...