Hodgdon v. Golder

• Decision Date: 13 June 1883
• Citation: 75 Me. 293
• Parties: LOIS D. HODGDON and another v. MOSES D. GOLDER.
• Court: Maine Supreme Court

75 Me. 293

LOIS D. HODGDON and another v. MOSES D. GOLDER.

Supreme Judicial Court of Maine.

June 13, 1883

REPORT on agreed statement.

Assumpsit on a promissory note of nine hundred dollars given May 11 1876, by the defendant to the plaintiffs.

The opinion states the material facts.

Ludden and Drew, for the plaintiffs, cited Morrison v. Jewell, 34 Me. 146; Thompson v Mansfield, 43 Me. 490.

L. H. Hutchinson and A. R. Savage, for the defendant.

There was a total failure of the consideration. Rice v. Goddard, 14 Pick. 295, and cases there cited; Jenness v. Parker, 24 Me. 289.

Defendant took no title by the widow's joining in the deed. A widow cannot alien or assign unassigned dower. 1 Washburn on Real Property, (3d. ed.) 286, 232, 237; Johnson v. Shields, 32 Me. 424.

Her joining in the deed can only operate, at the most, as an estoppel and not by way of grant of title. Lothrop v. Foster, 51 Me. 367.

The principal estate having failed, the subordinate estate, if any, fails also.

There was a total failure, of a specified, distinct aliquot part of the consideration; to wit, the share of Nellie M. Hodgdon; and the defendant has no remedy upon the covenants of Nellie M. Hodgdon, she was a minor and her deed has been avoided.

APPLETON C. J.

On February 25, 1874, Alexander B. Hodgdon died leaving a widow and three children, one of whom, Nellie M. Hodgdon, was a minor. In the following April an administrator was duly appointed and qualified.

In May, 1876, the widow and son acting as agents for the two daughters as well as for themselves, sold the real estate of the decedent to the defendant for thirty five hundred dollars, giving a warranty deed signed by them and the other children of the deceased. The note in suit was given as part of the consideration of the purchase.

At time of the above mentioned conveyance, the estate of the decedent had not been settled in the probate office. Subsequently thereto, the real estate conveyed to the defendant, was sold by the administrator de bonis non of the estate of Alexander B. Hodgdon to S. A. Cummings and Jacob A. Field, to the latter of whom the defendant had conveyed the estate by him purchased, as before stated.

The interest of Nellie M. Hodgdon, was sold by her guardian to S. A. Cummings by license from the probate court.

The warranty deed of the heirs and widow of Alexander B. Hodgdon conveyed to the defendant a seizin of the premises granted. He entered into possession of and occupied the same until he conveyed them away. He had both seizin and possession. Though subsequently, this title was defeated by the deed of the administrator de bonis non on the estate of Hodgdon and that of the guardian of the...