McPherson v. Hayward

• Decision Date: 19 February 1889
• Citation: 17 A. 164,81 Me. 329
• Parties: MCPHERSON v. HAYWARD et al.
• Court: Maine Supreme Court

17 A. 164

81 Me. 329

MCPHERSON

v. HAYWARD et al.

Supreme Judicial Court of Maine.

Feb. 19, 1889.

Report from supreme judicial court, Aroostook county.

Bill to redeem a mortgage, filed by Susan H. McPherson against Jarvis Hayward and Harriet Carr. Heard on bill and supplemental bill, answers, and proofs. The bill, as originally framed, was to redeem a statute mortgage of certain lands in Aroostook county, given by Nathaniel Blake to Gr. K. Jewett, August 31, 1861. After an answer to this bill was filed, it was discovered that the title of the mortgagor, Blake, was by a conditional deed of the land from the state, which, it was alleged, became forfeited for non-payment; and a second answer was filed denying there was any right of redemption, it being claimed that the title to the land had rested in G. K. and E. D. Jewett October 18, 1862, under a release to them by the state. It became a material question whether or not the plaintiff was entitled to redeem the property, upon the ground that the transactions between Blake and the Jewetts, under whom plaintiff and defendants claim, constituted an equitable mortgage.

Powers & Powers, and L. C. Stearns, for plaintiff. A. W. Paine and Madigan & Mad igan, for defendant Hayward.

EMERY, J. The material facts found by the court are these: Nathaniel Blake, January 4, 1853, bargained with the state land agent for the purchase of a large tract of state land, and for the purchase money gave three notes of that date for $1,186.57 each, and maturing in one, two, and three years, respectively. He at the same time received from the land agent the usual deed to himself and heirs and assigns, conditioned that it should be void if the said notes were not paid at their maturity. Blake himself paid the first note, and also part of the second note. Part of the purchase money remained unpaid, when the legislature by resolve approved March 11, 1859, declared that one-third of the sum then due should be paid by September 1, 1860, one-third by September 1, 1861, and the last third by September 1, 1862, or the land should be held forfeited to the state. Blake then arranged with E. D. Jewett & Co. to pay the balance due on his notes, and take security therefor upon the land. At the request of the Jewetts, Blake, on September 10, 1861, executed and delivered to them a mortgage deed of the land to secure them for the payments they had made, and for the additional payments they should thereafter make, on his land notes. This deed was recorded September 17, 1861. The Jewetts completed the payments for the land under this arrangement, and then took a deed of the land from the state to themselves dated October 18, 1862. This deed was taken solely as security for their payments made on Blake's account for the same land. The Jewetts, under the same arrangement, assumed the care of the land, and kept a regular account with it, charging what they had paid and interest, etc., and crediting proceeds, etc. The land was designated upon their books as the "Blake purchase." They made statements of this account to Blake yearly for several years,—till 1874 at least. The understanding was that the Jewetts were to reimburse themselves out of the land for all expenditures and services in that behalf, and then convey the land to Blake. In 1875, the Jewetts went into bankruptcy, and their title to this land, with other lands, passed to their assignee under the usual court deed March 14, 1876. The assignee transferred this title with other lands to the respondent Hayward, April 23, 1879. Hayward knew of the mortgage deed and of the arrangement between Blake and the Jewetts about this land. Blake stated verbally, in 1879 or 1880, that he saw little chance of being able to redeem the land from the Jewetts, and had given up the hope of redeeming. He declined however to execute a quitclaim deed when asked to do so by the Jewetts. It does not appear to the court that he made the statement in answer to any inquiry from a would-be purchaser, or that the land was purchased from the assignee on the strength of Blake's statement. Blake died in 1880. Sarah H. McPherson, the complainant, now owns 35-36ths of such interest in this land as he left, and one Harriet Carr owns the other 36th. Mrs. McPherson filed this bill February, 1886, against Hayward, making Mrs. Carr a co-respondent. The bill prays for an account, and for a decree of redemption and conveyance of the land. The usual account had been demanded and refused.

The question of law is mainly whether or not the papers and transactions above recited constituted a mortgage of the land from Blake to the Jewetts. If so, the rights of the parties would be those of mortgagor and mortgagee, and hence easily determined by familiar rules. If at the time of his arrangement with the Jewetts and his deed to them Blake had the legal title to the land, the transaction clearly constituted a mortgage, through which the Jewetts acquired only a mortgagee's interest, leaving in Blake the full interest of a mortgagor. We do not think though that a legal title in Blake was essential to a mortgage relation between him and the Jewetts. Blake, under his contract with the state, evidenced by the notes and the deed, undoubtedly acquired at least an equitable interest or estate in the land itself. In equity he would be regarded as the real owner, and the state as simply reserving a lien for the purchase money. He had a good title against all the world except the state. Stratton v. Cole, 78 Me. 553, 7 Atl. Rep. 472. This interest of Blake was clearly subject to sale or assignment, and also subject to sale or assignment for security or in mortgage. 1 Jones, Mortg. § 136. Blake could mortgage as well as sell his interest. If the Jewetts acquired the fee directly from...