Powers v. Patten

• Decision Date: 31 December 1880
• Citation: 71 Me. 583
• Parties: LOUISA POWERS v. SARAH T. PATTEN.
• Court: Maine Supreme Court

71 Me. 583

LOUISA POWERS v. SARAH T. PATTEN.

Supreme Judicial Court of Maine.

December 31, 1880

ON REPORT.

Writ of entry, wherein the plaintiff demands possession of thirty-one acres of land in Houlton. The plea was the general issue with a brief statement claiming title in the defendant.

The opinion states the case. The materials referred to in the opinion as put in evidence to establish a tax title, were: A tax deed from William Donovan, a collector of taxes of the town of Houlton for the year 1869, to Samuel H. Powers, dated August 22, 1870, and recorded September 24, 1872; a tax deed from John V. Putnam, a collector of taxes for the town of Houlton for the year 1868, to Samuel H. Powers, dated April 11, 1870 and not recorded; and a quitclaim deed from Samuel H. Powers to Louisa Powers, dated November 14, 1872, and recorded same day.

By the terms of the report the law court was to render such judgment as the case requires.

Powers & Powers, for the plaintiff, cited: Bachelder v. Lovely, 69 Me. 33; Wilson v. Widenham, 51 Me. 556; R. S., c. 82, § 15; Andrews v. Hooper, 13 Mass. 472.

It is true that Isaac Smith, Jr. gave Lydia Smith a bond for the support of herself and husband, and secured it by a mortgage on the premises. Some dissatisfaction having arisen with this arrangement, a life lease of the same premises was given instead of the bond and mortgage. The plaintiff testifies that the life lease was given in the place of the bond, and the bond was considered of no value on that account.

If this is so, neither the mortgagee nor her assignee can make any claim under the mortgage, any more than they could if it had been given to secure a note and the note had been paid.

For what other purpose or with what other understanding could the life lease have been given?

Moreover, in the will of Lydia Smith, mention is made of the life lease, but nothing of the bond or mortgage.

The defendant could not produce the bond at the trial; the presumption is, that it was cancelled and surrendered at the time the life lease was given.

The life lease was discharged and delivered to this plaintiff and was produced by her, with the written discharge upon it, at the trial.

Madigan & Donworth, and W. M. Robinson, for the defendant, cited: R. S., c. 6, § 76; Loomis et al. v. Pingree et als. 43 Me. 299; Pike v. Galvin, 29 Id. 183; Harriman v. Gray, 49 Id. 537; Read v. Fogg, 60 Id. 481; Bigelow on Estoppel, 274, 293, 294, 337, 338.

See also, 59 Me. 157; 64 Id. 200; 51 Id. 367; 50 Id. 62; 53 Id. 275; 31 Id. 177, 395; 12 Pick. 47, 67; 4 Kent's Com. 8th ed. 371, 270, 271; Rawle on Covenants, 4th ed. 383, 387, 388; 13 Me. 281; 20 Id. 260; 14 Johns. 193; 3 Wheat. 452; 6 Cush. 34; Brown v. Staples, 28 Me. 497; 13 Pick. 60; 20 Pick. 458; 33 Me. 483; 34 Id. 299. This case differs from Batchelder v. Lovely, 69 Me. 33.

PETERS J.

The conveyances upon which the one or the other side depends, to prove its claim of title to the premises in question, are these: Joseph Houlton to Charles B. Smith, in 1852; (Charles B. Smith to Joseph Houlton, mortgage back on same day); Charles B. Smith (subject to mortgage) to I. B. Smith, Jr. in 1856; I. B. Smith, Jr. to Lydia Smith, in 1859; Lydia Smith and husband (I. B. Smith, Sr.) to I. B. Smith, Jr. in 1863; I. B. Smith, Jr. to Lydia Smith, a mortgage back on same day to secure a bond given for her and her husband's life support; I. B. Smith, Jr. to Lydia Smith, in 1864, a life lease for the life of herself and husband, or the survivor of them; Lydia Smith to I. B. Smith, Sr. a devise by will executed in 1867, and probated in 1869; I. B. Smith, Jr. to Samuel H. and Louisa Powers, in 1872; and Samuel H. Powers to Louisa Powers (demandant,) in 1873.

This chain shows the title in the demandant, subject to two mortgages and a lease. The materials put in evidence to establish a tax title, are clearly useless for that purpose.

The defendant claims title or at least a right of possession under the aforenamed mortgages and lease, or some one of them.

Joseph Houlton foreclosed his mortgage from Charles B. Smith, the foreclosure expiring in 1867; Joseph Houlton to Eben Woodbury in 1871, (warranty); Woodbury to I. B. Smith, Sr. in 1874; I. B. Smith, Sr. to Sarah T. Patten (defendant,) in 1874. This chain of conveyances, but for difficulties afterwards stated, shows the title to be in the defendant.

In addition to his previous conveyances, I. B. Smith, Jr. conveyed the same premises to the defendant on January 10, 1880.

Several questions arise, which are to be considered in their legal and not equitable bearings, although possibly some of them might result differently in equity:

The demandant contends, that, as no notes are produced to support the mortgage of Smith to Houlton, the presumption is that they have been paid. This point is not sustained. If the present defendant were in the position of a demandant, and a conditional judgment was demanded by either side entitled to it, in such case she could not recover without producing the notes, or accounting for their non-production. Blethen v. Dwinal, 35 Me. 556. But here the defendant, representing the mortgage title, is in possession. At common law, she could not be sued out of possession, even by proof of payment of the mortgage debt, if paid after condition broken, ( Wilson v. Ring, 40 Me. 116), although now otherwise by statute. R. S., c. 90, § 28. The mortgage itself is a conveyance of the estate, and the recital of the notes in the condition of the mortgage, is an admission of their existence and of the existence of the debt. Jones' Mort. 2d ed. 171. For the purpose of establishing the defendant's right of possession, the mortgage alone without the notes is admissible as evidence of title and the mortgage debt. Smith v. Johns, 3 Gray 517. Whether sufficient and satisfactory or not, depends upon the accompanying circumstances. Mathews v. Light, 40 Me. 394. We think that the circumstances in this case show that the mortgage notes were never wholly paid. At this place, the title would seem to be in the defendant.

The demandant, however, claims that the deed of Woodbury to Smith, Sr. in 1874, inures to her benefit, in this way: Lydia Smith and husband (I. B. Smith, Sr.) in 1863, as before stated, conveyed the premises to I. B. Smith, Jr. by a warrantee deed, while the mortgage title which descended to Woodbury was outstanding. The demandant claims that, when Woodbury conveyed to Smith, Sr. the mortgage interest passed through Smith, Jr. to her as an after-acquired title; that Smith, Sr. became enabled in this way to make good his covenants of warranty to Smith, Jr. and that the same title became, by the other conveyances before named, assigned to her.

The defendant attempts upon various grounds to avoid this apparent dilemma.

It is said that the covenants of the husband do not run with land conveyed as his wife's estate, and not his. That is not so. It matters not whose land it was, or whether either had any title. Nash v. Spofford, 10 Met. 192.

It is said, also, that the Woodbury title was known to the demandant and all under whom the demandant claims. That does not affect her right. She claims under that title, and not in hostility to it. The two titles coalesce in her. She only gets what the covenants in the deed to her predecessor in title entitles her to have.

Then it is contended, that the covenants in the deed from Smith, Sr. and wife, do not descend to the demandant, because in several of the intervening deeds; between that deed and hers, the grantors convey, not the land itself, but only " their right, title and interest" in the land. The argument is, to which we do not assent, that such a conveyance does not assign and transmit covenants of warranty which the grantor holds from parties preceding him. It is decided that a levy upon execution does not assign any covenants of warranty belonging to the debtor. Crocker v. Pierce, 31 Me. 177. And the defendant also relies upon the case of Blanchard v. Brooks, 12 Pick. 46, which decides that such a deed passes the vested, and not the contingent, interest held by the grantor. The former case is determined upon reasons peculiar to itself. In the latter case, the question was whether, in addition to a vested interest, the deed also passed an interest which could come to the grantor under a devise, only...