Rowell v. Jewett

• Decision Date: 28 March 1879
• Citation: 69 Me. 293
• Parties: Jennie A. ROWELL, in equity, v. Henry S. JEWETT.
• Court: Maine Supreme Court

69 Me. 293

Jennie A. ROWELL, in equity, v. Henry S. JEWETT.

Supreme Judicial Court of Maine.

March 28, 1879

BILL IN EQUITY, heard on bill, answer and proof.

On August 21, 1865, David Mitchell and his wife Eliza Mitchell purchased a farm together with forty-four acres of other land of Scamman Burrill for $4,000, and paid down $2,130. The premises were conveyed to Eliza Mitchell and Fifield Mitchell, the youngest son of David and Eliza. At the same time Eliza and Fifield gave to Burrill their four joint promissory notes for $1,970, balance of purchase money, and secured the payment thereof by their joint mortgage of the premises. At the same time, Eliza Mitchell (her husband David joining in the deed) by deed of warranty conveyed her half of the premises to Fifield, for the nominal consideration of $1,000, upon the conditions following:

" That if the said Fifield Mitchell shall support the said David Mitchell and Eliza Mitchell during their and each of their natural lives in a comfortable manner, in sickness and in health, and furnish them good and decent clothing, in summer and in winter, good and sufficient house room and fire-wood, and also furnish them with a horse and wagon and harness, to visit their friends and to attend church, and to furnish everything necessary for their support and comfort suited to persons of their age and condition in life, (with this proviso, that whatever labor said David Mitchell shall perform shall be turned in for the support of himself and wife) and pay one hundred dollars each to Zilpha and Amanda Jane when they are married, and save said David Mitchell and Eliza Mitchell harmless from four notes by them signed with me this day, payable to Scamman Burrill, for nineteen hundred and seventy dollars, then this deed to remain in full force and virtue, otherwise to be void and of no effect."

There was evidence tending to show that Fifield grossly maltreated both his father and mother, especially the latter; that said David Mitchell died May 24, 1873; that Eliza Mitchell, on account of the maltreatment from Fifield, went to live with her son Frank, at Skowhegan, thirteen miles from the farm, on September 4, 1873, having previously notified Fifield of her intention to do so, and requested him to make provisions for her support there, which he refused to do.

On November 19, 1873, Eliza Mitchell went to the house on the farm, in the presence of two witnesses, and then and there informed Fifield that she had come to make an entry upon the property for breach of the conditions of her deed to him that he had refused to support both her husband and herself while living on the farm and at Skowhegan; that he had not paid the Burrill notes; and had not paid Zilpha who was married in May, 1873.

It also appeared that Fifield was notified of the marriage of Zilpha that he did not offer to pay her during a five weeks visit at his house; that after she left he wrote to her saying he would pay her if she would send him a receipt; that she replied she could not send the receipt until she received the money which would be very acceptable.

It also appeared that, on July 19, 1873, just before Eliza Mitchell left the farm to live with her son Frank, at Skowhegan, she made a written demand on Fifield for certain groceries and cloth and received from him the articles, amounting to the sum of $25.

It also appeared that on March 15, 1870, the defendant took an assignment of the Burrill mortgage and last note of $470 and interest; that on April 2, 1872, the defendant advanced to Fifield $485 for which he took his note secured by a second mortgage on the farm, and that on August 31, 1871, Fifield gave to the defendant a quitclaim deed of his interest in the farm taking back an unsealed written agreement, of the same date, to reconvey the premises on payment, within six months, of certain sums therein specified. In connection with this agreement, Jewett (defendant) testified that as the time expired, he told Fifield " to go to work and keep the farm up and he would wait upon him and give him a chance," etc.

It also appeared that Eliza Mitchell devised her interest to the plaintiff; that she died August 10, 1874; that her will was duly probated and the plaintiff appointed and qualified as executrix thereof in February, 1875.

No question was made in relation to demand and tender.

The remaining facts appear in the opinion.

D. D. Stewart, for the plaintiff, submitted an exhaustive brief.

J. Baker, for the defendant, elaborately argued the following propositions.

I. The father died and paid nothing, and so no breach as to him.

II. The mother being a married woman, and her note being made before Stat. 1866, c. 52, took effect, she was never liable thereon. Bryant v. Merrill, 55 Me. 515. Mayv v. Hutchinson, 57 Me. 546. Lee v. Lanahan, 59 Me. 478. But if liable she died without having paid anything, hence father and mother were held harmless.

III. Zilpha declined to send a receipt and never demanded the money.

IV. The mother lived on the farm eight years; never claimed any forfeiture or ceased to receive support from Fifield under the contract, thus recognizing it as subsisting; and every time she received supplies she waived any past deficiencies. Demanding and receiving supplies in July, 1873, was a distinct recognition of the contract to support and a waiver of all prior breaches. Hooper v. Cummings, 45 Me. 369. Andrews v. Senter, 32 Me. 394. Sharon Iron Co. v. Erie, 41 Penn. St. 341.

V. The facts show that the support was to be furnished on the farm; relationship of the parties and the language of the deed, " good and sufficient house room," " horse, wagon and harness," all tend the same way.

VI. Full performance was tendered " anywhere" before expenses were incurred for her support at Skowhegan.

VII. Re-entry not sufficient.

VIII. If sufficient, the case should be sent to a master to determine what sum will compensate for the breach and save the forfeiture of the whole estate; or that an issue be made up, quantum damnificatus, to be tried by a jury.

IX. Equity and justice should be done both parties. The court has full equity powers (Stat. 1874, c. 175,) and may send the case to a master or jury to ascertain the damages. Frost v. Butler, 7 Me. 225-31. Smith's Laws of Maine, c. 50, § 2 and note. Jenks v. Walton, 64 Me. 97. Atkins v. Chilson, 11 Met. 112. Stone v. Ellis, 9 Cush. 95. Steel v. Steel, 4 Allen 417. Gibson v. Taylor, 6 Gray 310. Story's Eq., §§ 1315, 1319, 1320, 1326 a and notes. Henry v. Tupper, 29 Vt. 358. Austin v. Austin, 9 Vt. 420. Hill v. Barclay, 18 Vesey 56. Dunkler v. Adams, 20 Vt. 421.

X. A pecuniary consideration can be made for any supposed breach of the conditions. Neither father nor mother has paid anything on the mortgage. One hundred dollars and interest to Zilpha. On the condition for support; the father died without complaint or expense--the mother had her support for eight years on the farm and then left, and the court may possibly find that there was some expense which Fifield ought to pay. The amount of that expense is easily ascertainable. The breach was not " gross, wilful and inequitable." Jenks v. Walton, supra.

BARROWS J.

The transactions out of which this suit has arisen are mostly stated in the report of the case of Rowell v. Mitchell 68 Me. 21.

That was a suit at law, originally brought by Eliza Mitchell, the mother of the plaintiff, and after her death prosecuted by the plaintiff as her devisee, for the possession of an undivided half of a certain farm, against this defendant and Fifield Mitchell, who was originally a tenant in common with Eliza, of the said farm, which the plaintiff here seeks to redeem from their joint mortgage given to Scamman Burrill, and now held by the defendant.

The plaintiff was non-suited in that action, upon the ground that even assuming that she, as Eliza's devisee, had established as against Fifield Mitchell her right to recover an undivided half of the farm, by reason of the forfeiture of his estate under Eliza's conditional deed of that half to him, and though he might be precluded by the pleadings from setting up his tenancy under Jewett as a defense, still she could not maintain her action at law for the possession against this defendant Jewett, who had, as against her, the rights of a mortgagee against a mortgagor, nor against his tenant.

The effect of this view of the case was to leave it undetermined as between the plaintiff and Fifield Mitchell, whether she had the right to redeem which originally belonged to Eliza Mitchell as owner of an undivided half of the farm mortgaged, or whether it still belonged to said Fifield under the conditional deed to him from Eliza.

Subject to the mortgage here sought to be redeemed, Fifield Mitchell, April 2, 1870, mortgaged an undivided half the farm to the defendant, to secure a promissory note of that date, for $485, payable in two years, with interest at 6 per cent for the first year, and 9 per cent for the second and thereafterwards until paid; and afterwards, August 31, 1871, while in possession of the whole farm, quitclaimed his interest in the same to said defendant, taking back an agreement of the same date signed by the defendant, but not (so far as appears) under seal, and never recorded, to give said Fifield a quitclaim deed of the interest thus conveyed to him by said Fifield, if he should pay to the defendant within six months the sum of two hundred and fifteen dollars, with interest at 8 per cent until paid, and also pay the aforesaid note secured by mortgage at maturity. It does not appear that he has done either.

In this condition of things this bill in equity for redemption from the mortgage given by Eliza and Fifield Mitchell, is brought...