Frisbee v. Frisbee

• Decision Date: 29 May 1894
• Citation: 88 Me. 444,29 A. 1115
• Parties: FRISBEE et al. v. FRISBEE et al.
• Court: Maine Supreme Court

29 A. 1115

88 Me. 444

FRISBEE et al.

v. FRISBEE et al.

Supreme Judicial Court of Maine.

May 29, 1894.

Report from supreme judicial court, York county.

Bill by Mary P. Frisbee and others against Charles W. Frisbee and another. Dismissed.

Savage & Oakes, for plaintiffs. Ira T. Drew and Geo. F. Haley, for defendants.

FOSTER, J. This is a bill in equity for redemption. The following statement is essential to an understanding of the case:

Joseph Frisbee, father of the complainants, on December 17, 1856, executed a mortgage to Joseph Seaward to secure the payment of $786.50. April 2, 1857, he made another mortgage to secure the payment of $350 to John E. Lowry.

May 28, 1857, Joseph Seaward assigned his mortgage to Stillman B. Allen; and on the same day the mortgagor, Joseph Frisbee, by quitclaim deed, released to Allen his right of redemption, and authorized him to take possession whenever he wished so to do.

June 24, 1857, Allen began a foreclosure of the Seaward mortgage by publication, which was duly recorded.

March 28, 1860, Lowry assigned his mortgage to Thomas Frisbee, brother of the mortgagor, and the father of these respondents.

June 20, 1860, Thomas Frisbee, assignee of the second mortgage, brought a bill in equity against Allen, assignee of the first mortgage, for redemption of the same, in order to protect his interest as second mortgagee. In that suit, Judgment was entered that the amount due Allen was $903.83, which sum was paid by Thomas Frisbee, June 5, 1861, but there was no assignment of the mortgage.

June 15, 1861, or 10 days after payment of the amount due, Allen conveyed to Lydia Frisbee, mother of the complainants, all his right in equity to redeem the premises; and, as heirs of Lydia Frisbee, these complainants claim the right to redeem. Joseph Frisbee, the mortgagor, died December 2, 1861, and May 9, 1862, Thomas Frisbee took possession of the premises, and he and his heirs and assigns have ever since been in possession.

The respondents deny the right of the complainants to redeem upon two grounds: (1) That by payment of the amount due upon the first mortgage, in accordance with the decree of the court, Thomas Frisbee obtained the benefit of Allen's foreclosure, by subrogation, and the title in him thereby became absolute. (2) By adverse possession for more than 20 years.

We shall consider the first position briefly, for we think the facts in relation to adverse possession are decisive in relation to the rights of the parties.

1. The right of redemption exists, not only in the mortgagor himself, but in every other person who has an interest in, or a legal or equitable lien upon, the premises mortgaged. It may be stated, in general terms, that any one who has an interest in the premises, and who would be a loser by foreclosure, is entitled to redeem. Consequently, the complainants, as heirs of Lydia Frisbee, to whom the equity of redemption was conveyed by Allen, had such an interest as would entitle them to redeem, if otherwise entitled to that right.

The time for redemption had nearly expired under the foreclosure of the senior mortgage held by Allen when Thomas Frisbee, under whom the respondents claim, brought his bill to redeem. Did the foreclosure continue to run, and become perfected, in the hands of Thomas Frisbee? We think not There was no assignment of the mortgage while foreclosure was pending. Had there been, the assignment would have carried with it the foreclosure, and it would have become available in the hands of the assignee. Hurd v. Coleman, 42 Me. 182. The mortgage was redeemed. The rights which the second mortgagee acquired arose by operation of law, and not by operation of any assignment made by the parties. And while those rights of subrogation were such as to entitle him to be reimbursed for the amount he had been compelled to pay to protect his interests as second mortgagee, in case his mortgage was redeemed, yet the distinction between rights acquired by assignment or contractual relations between the parties, and those acquired by operation of law, as in the present case, clearly exists, and is recognized by the courts. Lamb v. Montague. 112 Mass. 352, 353; Butler v. Taylor, 5 Gray, 455; Ellsworth v. Lockwood, 42 N. Y. 89, 97, 98; Hubbard v. Mill Co., 20 Vt. 402, 405; Insurance Co. v. Middleport, 124 U. S. 534, 549, 8 Sup. Ct. 625; Railroad v. Dow, 120 U. S. 287, 7 Sup. Ct 482; Shinn v. Budd, 14 N. J. Eq. 234; Jones, Mortg. § 874.

The rights which were here acquired by the second mortgagee, arising by operation of law, entitled him to be subrogated to the rights...