New England Wiring & Constr. Co. v. Farmington Elec. Light & Power Co.

• Decision Date: 04 February 1892
• Citation: 24 A. 848,84 Me. 284
• Parties: NEW ENGLAND WIRING & CONSTRUCTION CO. v. FARMINGTON ELECTRIC LIGHT & POWER CO.
• Court: Maine Supreme Court

24 A. 848

84 Me. 284

NEW ENGLAND WIRING & CONSTRUCTION CO.

v. FARMINGTON ELECTRIC LIGHT & POWER CO.

Supreme Judicial Court of Maine

Feb. 4, 1892.

(Official.)

Exceptions from supreme judicial court, Franklin county.

Action by the New England Wiring & Construction Company against the Farmington Electric Light & Power Company. There was a judgment for plaintiffs. Defendants except. Exceptions overruled.

N. & T. A. Morrill and F. E. Timberlake, for plaintiffs.

J. C. Holman and S. C. Belcher, for defendants.

PETERS, C. J. The plaintiffs, having sued the defendants and attached their real estate in an action of assumpsit, ascertained that the estate attached was incumbered by a mortgage to S. C. Belcher. As attaching creditors, under the authority of certain provisions of our statute, (Rev. St. c. 81, §§ 60, 61.) they paid the amount due on the mortgage to the mortgagee, and took from him a release of his claim on the land. By the sections of the statute above cited, the release from the mortgagee vested in the plaintiffs the mortgage estate, and enables them to maintain this (real) action to recover possession of the property mortgaged.

As one step in the proof of this action the plaintiffs produced in evidence an office copy of the mortgage, together with the original note secured thereby. The copy, although objected to, was correctly received. The rule admitting copies of deeds in real actions applies with the same force to mortgages as it does to absolute deeds. The plaintiffs' claim is not directly under the mortgage, but under a deed from the mortgagee. A mortgage is a deed. The plaintiffs merely seek possession of the land, and the statute accords to them that right.

It appears from an inspection of the copy presented that the mortgage was executed for and in behalf of the defendants by some of its officers, and the defendants objected to its introduction in evidence without preliminary proof that such officers had authority to execute the instrument for their principals. The answer to this objection is that the instrument, although a copy merely, proves itself. Due execution and delivery are presumed until someting appears to show the contrary. Whitmore v. Learned, 70 Me. 276; Chamberlain v. Bradley, 101 Mass. 188.

Exceptions overruled.

WALTON, VIRGIN, EMERY, FOSTER, and HASKELL, JJ., concurred.