Phinney v. Phinney

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: FOSTER, J.
• Citation: 17 A. 405,81 Me. 450
• Decision Date: 15 April 1889
• Parties: PHINNEY v. PHINNEY et al.

17 A. 405
81 Me. 450

PHINNEY
v.
PHINNEY et al.

Supreme Judicial Court of Maine.

April 15, 1889.

In equity. Report from supreme judicial court, Penobscot county.

Bill in equity by Mary F. Phinney against Sarah E. Phinney and Nancy Parsons, under Laws 1887, c. 129, to obtain possession of property mortgaged by Sarah E. Phinney to Nancy Parsons. The bill alleged that Mary F. Phinney obtained a judgment on November 25, 1885, for $377 against Sarah E. Phinney, which judgment is still un reversed, not annulled, and in no part satisfied, and that said Sarah E. Phinney is at the date hereof debtor to her in the amount of said judgment for said damage and costs of suit, with legal interest thereon from the said date of said rendition of judgment; that said Nancy Parsons and one Sally Parsons, by their deed of quitclaim dated August 5, 1875, conveyed to said Sarah E. Phinney all their interest in certain real estate; that said Sarah E. Phinney mortgaged said real estate to said Nancy and Sally Parsons to secure the performance of the agreement of said Sarah E. Phinney to maintain the said Sally and Nancy during their lives, and the survivor during her life, in a comfortable manner, according to their station in life, both in sickness and in health, and shall pay their funeral charges, the same being a collateral agreement or undertaking other than the payment of money; that said Sally Parsons is dead, and said Nancy Parsons, as the survivor of said mortgagees, has commenced proceedings to foreclose said

17 A. 406

mortgage for alleged breach of the conditions thereof, on July 28, 1884; that the time of redemption of said mortgage has not expired; that your complainant has the claim aforesaid, the judgment hereinbefore described, against the said Sarah E. Phinney, said mortgagor; that your complainant, by and upon a certain writ dated July 18, 1887, returnable to the supreme judicial court next to be holden at said Bangor within and for said county of Penobscot, on the first Tuesday of October, A. D. 1887, wherein said Sarah E. Phinney was summoned to answer unto your complainant in a plea of debt, setting forth in the declaration therein the above-described judgment, did attach said mortgagor's interest in said estate on said claim to the amount of $800, July 18, 1887, and did on said July 18th cause said attachment to be duly recorded in the registry of deeds for said county of Penobscot; that Nancy Parsons is the owner of such mortgage, and resides at Plymouth, in said county of Penobscot; that the aforesaid mortgaged property is situated in Plymouth, in said county of Penobscot; that said agreement has to be performed in the said county of Penobscot. Your complainant prays as follows: (1) That said court may examine into the facts, and ascertain whether there has been any breach of the conditions of said mortgage, and, if such is found to be the fact, to assess the damages arising there from, and to make such orders and decrees in the premises as will secure the rights of said mortgagee, so far as the same can be reasonably accomplished, and enable your complainant, by fulfilling such requirements as the court may impose, to hold said property, or such right or interest as may remain therein by virtue of such attachment, for the satisfaction of her claim; (2) that said mortgagee may be decreed to have possession of such property for such time as the court deems just and equitable; (3) that pending these proceedings the right of redemption shall not expire by any attempted foreclosure of such mortgage; (4) that for the purposes aforesaid all necessary or proper accounts may be taken, inquiries made, and decision given; (5) that the complainant may have such further or other relief as the nature of the case may require; (6) that said respondents may upon oath make full, true, and perfect answer to all and singular the matters hereinbefore stated as fully and particularly as if the same were hereinafter repeated, and they were distinctly interrogated in relation thereto. Defendants filed a demurrer, as follows: "The demurrer of Nancy Parsons and Sarah E. Phinney, who say the plaintiff is not entitled to the relief prayed for because she has, as is shown by her bill, a plain and adequate remedy at law; because the plaintiff shows by her said bill that she recovered judgment against the defendant Sarah E. Phinney, on the first Tuesday of October, A. D. 1885, and does not show nor allege that she sued out execution on said judgment, nor that she has attempted in any manner to enforce said judgment against the goods and estate of said Sarah, nor that said Sarah has not sufficient goods and estate to satisfy said judgment that may be reached by ordinary process of law, without recourse to the intervention of this court sitting in equity; because the plaintiff does not show in her said bill that she has exhausted her remedies at law; because the plaintiff has not by her said bill shown such a case as entitles her to any such relief as is thereby prayed, or any other relief whatsoever against these defendants.

H. M. Heath, for plaintiff. S. S. Hackett, for defendants.

FOSTER, J. The object of this bill is to enable an attaching creditor of the mortgagor, pending proceedings for foreclosure, to step in, postpone the time for the expiration of the right of redemption, and enable him to fulfill the requirements devolving on the mortgagee, agreeably to chapter 129, Laws 1887. This statute provides that in all cases where a debtor has mortgaged real estate to secure the performance of a collateral agreement other than the payment of money, and proceedings have been commenced to foreclose the mortgage, and the time of redemption has not expired, a creditor of the mortgagor, having attached the mortgagor's interest, may file a bill in equity, and the court is thereupon authorized to ascertain whether there has been a breach of the conditions of the mortgage; and, if such is found to be the fact, to pass any order or decree, and thereby enable the creditor, by fulfilling such requirements as the court may impose, to hold the property or such right as may be acquired by virtue of such attachment, for the satisfaction of his claim; and it is therein provided that "pending such proceedings the right of redemption shall not expire by any attempted foreclosure of such mortgage." The mortgage in question was given long prior to this enactment, and was to secure performance of an agreement of the mortgagor to maintain the mortgagees, and the survivor of them, during their natural lives, in a comfortable manner, according to their station in life, and at their decease to pay their funeral charges. Proceedings for the foreclosure of this mortgage had been commenced, and the time for redemption had nearly expired, when this bill was brought. The defense interposed by demurrer and pressed upon our consideration is that the statute, if retrospective and therefore operative upon this mortgage, is unconstitutional, and consequently void so far as this mortgage is in question; that it is in contravention of that provision of the constitution of the United States which prohibits a state from passing any law impairing the obligations of contracts. That it was intended to act retrospectively, and apply to mortgages existing at the date of its enactment, as well as to such as should thereafter be made, there can be no question. The contract under consideration falls within

17 A. 407

the provisions of this act, and the question to be determined is whether the statute in respect to this contract is valid, or whether the legislature in enacting it transcended its power. The constitution of the United States (article 1, § 10) declares that no state shall pass any law which "impairs the obligation of contract." If the act...