Linscott v. Weeks

• Citation: 72 Me. 506
• Parties: JOHN LINSCOTT v. NOAH WEEKS and others.
• Decision Date: 30 July 1881
• Court: Maine Supreme Court

72 Me. 506

JOHN LINSCOTT v. NOAH WEEKS and others.

Supreme Judicial Court of Maine.

July 30, 1881

ON REPORT.

Trespass. The writ was dated October 23, 1877. The action was referred by rule of court. In addition to the facts stated in the report it was admitted that the plaintiff at the time he took his deed to lot C, referred to in the report, had knowledge of the sale of the barn, the title to which is in controversy.

(Referee's report of facts.)

" York, ss. Pursuant to the foregoing rule, I, the referee therein named, have notified, met and fully heard the parties, and maturely considered their several allegations and the evidence produced to support the same, am of opinion and do report accordingly, that on the twenty-second day of October, 1877, the defendants, without the permission of the plaintiff went upon the premises described in the writ with their team, and took up and carried away a portion of the floor of a barn standing thereon.

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TABLE

November 27, 1869, Samuel Pendexter conveyed by warranty deed to Timothy A. Pendexter, certain land represented in above plan by the three lots A, B and C, and Timothy A. Pendexter at the same time mortgaged back the same to Samuel Pendexter to secure notes given for the purchase money.

December 20, 1869, Timothy A. Pendexter sold the barn in controversy standing on lot C, verbally to Noah Weeks (one of the defendants) and Nathaniel Pendexter, who subsequently sold his interest in the barn to Andrew J. Pendexter, another of the defendants. The defendant, David Weeks, acted as servant of the two other defendants. Timothy A. Pendexter received one hundred dollars for the barn. The barn still stands on lot C, as it then stood, upon a wall, and having a cellar. December 27, 1869, Timothy A. Pendexter conveyed to Levi Pendexter by warranty deed, lot A, for one thousand dollars and on same day Samuel Pendexter, the mortgagee, conveyed by quitclaim deed his interest in the same to said Levi Pendexter.

March 2, 1870, Timothy A. Pendexter, conveyed by warranty deed consideration being five hundred dollars, to John Linscott, the plaintiff, the lot marked C, without mentioning the mortgage but reserving the new barn on said premises. Lot C, being the premises described in the writ. At the time Linscott took this deed he had actual notice of the sale of the barn.

January 11, 1871, Timothy A. Pendexter conveyed by warranty deed to Joseph W. Pendexter and another, lot marked B, without mentioning the mortgage, but Pendexter and the other had knowledge at that time that the barn had been previously sold.

November 9th, 1876, Samuel Pendexter assigned in writing to John Linscott, the plaintiff, the mortgage from Timothy A. Pendexter for $267.50 the amount then due on the mortgage note.

It is agreed by the parties that lot B is worth the amount now due on the mortgage.

The plaintiff, John Linscott, has been in possession of lot C, since the date of his deed from Timothy A. Pendexter, March 2, 1870. Linscott and Samuel Pendexter had actual knowledge of all conveyances herein named at time of assignment of mortgages.

If upon the foregoing statement, the plaintiff is entitled to recover, then he is entitled to judgment for twenty...