Lynn v. Richardson

• Decision Date: 03 May 1886
• Citation: 78 Me. 367,5 A. 877
• Parties: LYNN v. RICHARDSON and others.
• Court: Maine Supreme Court

5 A. 877

78 Me. 367

LYNN

v. RICHARDSON and others.¹

Supreme Judicial Court of Maine.

May 3, 1886.

On demurrer to bill in equity from supreme judicial court, Kennebec county.

The opinion states the facts.

H. M. Heath, for plaintiff.

Spear & Clason, for defendants.

DANFORTH, J. It is evident that, under the facts stated in the bill in this case, which are admitted by the demurrer, no decree can be passed which will aid the plaintiff in obtaining his rights. His prayer is that the mortgage described in his bill, and the debt which it was given to secure, and which he has paid, "may be decreed to be still subsisting; that he may be subrogated to the rights of the mortgagee therein; and may be empowered to foreclose the same according to law."

The facts show that when the plaintiff paid the debt both the note and the mortgage were surrendered to him, "without cancellation or discharge executed thereon, or on the record thereof;" and by a fair inference that no discharge was intended by either party. The mortgage, therefore, is subsisting by virtue of these facts, and a decree of court could add nothing to its force, would not change the facts, or to any extent change the condition or rights of the parties. When the plaintiff seeks to enforce his mortgage he must stand or fall by the facts as they shall then appear, regardless of any decree of the court, or the want of it. Here is no discharge to be canceled, as in Cobb v. Dyer, 69 Me. 494; no fraud or mistake to be rectified; nothing for the defendants to do, or refrain from doing; nothing to be accomplished by the decree asked; and, if granted, it would leave the parties in the same relative position in which it finds them.

It further appears that the plaintiff paid the debt secured by the mortgage as surety, and to relieve his own land from the incumbrance. This would entitle him to be subrogated to all the rights of the creditor and mortgagee to and under the mortgage, except so far as he may have lost them by some act or omission of his own, (Cummings v. Little, 45 Me. 183; Norton v. Soule, 2 Me. 341; Crafts v. Crafts, 13 Gray, 360;) and this would be so even though the surety were also mortgagor, (Kinnear v. Lowell, 34 Me. 299.) But this subrogation cannot be accomplished by a direct decree of the court, but only by acting upon the proper parties, and under a proper issue. In this case the creditor was the owner of the mortgage, and upon the payment of the debt it was his duty to make such a transfer as would enable the plaintiff to avail himself of it in the same manner as the mortgagee could do, subject, of course, to such paramount rights as subsequent purchasers might have acquired, if any. In case of a refusal to perform this duty, the court, upon presentation of the proper issue, and between the proper parties, could and would have compelled such performance. Wall v. Mason, 102 Mass. 313. But here the creditor is not a party, and hence no such decree can be made. When the plaintiff paid the note the mortgage was surrendered uncanceled. Had this been sufficient to have enabled the plaintiff to enforce his rights, there would be no occasion for a decree of court. If not sufficient, a decree such as is asked for would be of no avail.

It is equally evident that a decree empowering the plaintiff "to foreclose the mortgage according to law" would not only be unavailing, but unauthorized. If he has that right, the court could by a decree neither aid nor hinder. If there is anything lacking, the decree would not supply it. There does not appear to have been any assignment of this mortgage, and though the court might compel one, in a proper case, it cannot make one for the parties. That the plaintiff is entitled to one may be clear enough. Wall v. Mason, supra; Allen v. Clark, 17 Pick. 47. That he must have one to entitle him to foreclose, and thereby obtain a legal title to the land, is perhaps equally clear. Prescott v. Ellingwood, 23 Me. 345; Lyford v. Ross, 33 Me. 197.

But if the bill is intended as...