Jewett v. Bailey

• Decision Date: 01 May 1827
• Citation: 5 Me. 87
• Parties: JEWETT, Petitioner, v. BAILEY & AL
• Court: Maine Supreme Court

5 Me. 87

JEWETT, Petitioner, v. BAILEY & AL

Supreme Judicial Court of Maine, Kennebec

May, 1827

IN this case, which was a petition for partition, the seisin of the petitioner was denied by the respondents.It appeared that one Jeremiah Smith, who formerly owned the whole tract conveyed it by an absolute deed, in fee, to Colburn, Stevens and Flitner, his sureties, for their indemnity, and they mortgaged it to the Gardiner Bank for money obtained for his use, which was afterwards paid by Colburn and Stevens Flitner having become insolvent.Smith had no defeasance, but only a written promise from the grantees, to reconvey to him on payment of the money for which they were liable, which he had never done.The petitioner, knowing the facts, attached and levied on Flitner's part of the land holden in common.

Many other facts were introduced into the case, which are here omitted, for the clearer understanding of the case as actually decided by the court, all the material facts upon which the decision is founded being stated by the chief justice.The verdict was for the petitioner.

Judgment on the verdict.

Evans argued for the petitioner.

Allen, for the respondents.

OPINION

MELLEN, C. J.

The facts of this case, arranged and compressed, are these Previous to October 31st, 1814, Colburn, Stevens, and Flitner had become the sureties of Smith for sundry debts which he owed, to the amount of about $ 500, and on that day Smith conveyed to them the premises described in the petition, by an absolute deed, in fee simple.The consideration named therein is $ 600.They paid him $ 100 in some other way, satisfactory to him.It appears from the testimony of Smith, who was introduced as a witness by the respondents, that the deed was made in good faith and with honest intentions, that is, to indemnify them from all damage by reason of their suretyship, and advance of the $ 100, and at the same time an agreement was signed (though there is no proof it was under seal) by the grantees, and delivered to Smith, whereby they engaged to reconvey the premises to him upon his paying them said sum of $ 600 in a specified time.In 1815, this agreement was cancelled, and a new and similar one was given to Smith.He has, however, never paid said sum, nor any part of it, and so has never entitled himself to a reconveyance and has never received one from them.Stevens and Colburn have been obliged to pay the $ 500 for...