Rowell v. Mitchell

• Decision Date: 27 November 1876
• Citation: Rowell v. Mitchell, 68 Me. 21 (Me. 1876)
• Parties: JENNIE A. ROWELL v. FIFIELD MITCHELL et al.
• Court: Maine Supreme Court

68 Me. 21

JENNIE A. ROWELL v. FIFIELD MITCHELL et al.

Supreme Judicial Court of Maine.

November 27, 1876

ON REPORT.

WRIT OF ENTRY, originally commenced in the name of Eliza Mitchell, for one undivided half of the Burrill farm in Canaan, and one undivided fourth of a wood-lot from Burrill to Eliza Mitchell and Fifield Mitchell, dated August 21 1865, under which she claimed title.The writ was dated November 27, 1873.

The action was entered at the December term, 1873, and continued till September term, 1874, when the death of the demandant was suggested, she having deceased August 10, 1874; her will was duly probated; Jennie A. Rowell came in as devisee to prosecute; and at the present September term, 1875, her name was substituted in place of her mother, the original demandant.

At the present term, the defendants pleaded the general issue nul disseizin, jointly, and filed a joint brief statement of the grounds of their defense; that Jewett claimed title under the assignment of the Burrill mortgage and that Mitchell was in possession under him.

It appeared in evidence that David Mitchell and Eliza MitchellAugust 21, 1865, bought a farm in Canaan of Scammon Burrill, paid $2030 down, directed a conveyance of one undivided half to be made to their youngest son, Fifield Mitchell, one of the defendants, and of the other undivided half to Eliza Mitchell.Eliza and Fifield gave their joint notes for the balance of the purchase money, $1970, payable in one, two, three and four years, and a mortgage on the farm to secure its payment.She then gave (David Mitchell joining with her) a warrantee deed of her half to Fifield for the nominal consideration of $1000, upon certain conditions to be performed by him, viz: to support his father and mother comfortably through life, to pay $100 each to two daughters when married, and to pay off the $1970 and save said David and Eliza harmless therefrom.

Fifield went into possession of the whole farm.David Mitchell died May 24, 1873.Eliza Mitchell, September 4, 1873, went to live with her son, Frank, in Showhegan, about thirteen miles from the farm, 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; and she was there supported by Frank to the time of her death.She made a formal entry on the farm, November 19, 1873, in the presence of two witnesses, for non-performance of the conditions, stating to Fifield at the time that he had wholly neglected to support his father or her, had not paid the money to the girls when married, nor paid off the Burrill notes and mortgage, although more than four years overdue.

On March 15, 1870, Henry S. Jewett, one of the defendants, took an assignment of the Burrill mortgage and last note, and on August 31, 1871, Fifield gave Jewett a quitclaim deed of his interest in the farm, but remained in occupation.

Much evidence was introduced pro and con, as to the manner in which the parents were maintained at Fifield's.

March 8, 1875, the plaintiff demanded of Jewett a true account of the sum due on the mortgage, and on March 29th thereafter tendered him $800 " upon the mortgage that Fifield and his mother gave to Scammon Burrill, and by Burrill assigned to Jewett."

D. D. Stewart, for the plaintiff.

I.The original demandant's devisee is the proper party to prosecute the suit after her death.Hayden v. Stoughton,5 Pick. 528, 540.Brigham v. Shattuck,10 Pick. 306, 309.Austin v. Cambridgeport,21 Pick. 215.

II.The neglect to support comfortably and suitably David and Eliza Mitchell was a forfeiture of the conditions of the deed, and entitled either to re-enter upon the land for condition broken; no actual re-entry was necessary under our statutes, although one was made.R. S., c. 104, § 4.Austin v. Cambridgeport,21 Pick. 215.Stearns v. Harris,8 Allen 597, 598.

III.The payment of the $100 to each of the girls became due on notice of marriage.Chancey v. Graydon,2 Atk. ch. 617.

And forfeiture took place if not then paid.Reynish v. Martin,3 Atk. c. 331.

No demand of payment of the $100 necessary.Whitton v. Whitton,38 N.H. 127.

Nor could payment be waived by the girls.Mere silence never a waiver.Gray v. Blanchard,8 Pick. 284.

IV.Eliza Mitchell had a right to support anywhere she desired, within a reasonable distance; there being no language in the deed requiring her to receive support on the farm, and the refusal to support her after notice and request was a breach of the conditions of the deed.Crocker v. Crocker,11 Pick. 252.Hubbard v. Hubbard,12 Allen 586, 590.Thayer v. Richards,19 Pick. 398.Wilder v. Whittemore,15 Mass. 262.Pettee v. Case,2 Allen 546, 8, 9.

V.Notes to Burrill should have been paid when due, or, at most, within a reasonable time thereafter.Hayden v. Stoughton,5 Pick 528.Ross v. Tremain,2 Met. 495.

Neglect to pay for more than four years after all were due, was a breach of condition.Fisk v. Chandler,30 Me. 79, 82.

VI.Under the pleadings, a joint nul disseizin, nothing but a joint title can be offered in evidence.Title in one only does not support the issue.Wyman v. Brown,50 Me. 139, 145.

VII.Mitchell should have pleaded non-tenure, or disclaimed at first term.Not having done so, he has no defense.Colburn v. Grover,44 Me. 47.Wyman v. Brown,50 Me. 139.

VIII.Demandant is entitled to a qualified judgment against Jewett, so far as his title under Mitchell goes, not disturbing his possession under the mortgage.Doten v. Hair,16 Gray 149.Cronin v. Hazeltine,3 Allen 324, 326, (note).Kilborn v. Robbins,8 Allen 466, 472.Doyle v. Coburn,6 Allen 71.

J. Baker, for the defendants.

DANFORTH J.

This is a writ of entry to recover possession of an undivided half of certain lands described, and comes before this court upon report.It appears from the plaintiff's testimony that Eliza Mitchell and one of the defendants, Fifield Mitchell, on the twenty-first day of August, 1865, purchased the land of Scammon Burrill and took a deed of the whole lot as tenants in common; at the same time the said Eliza and Fifield joined in a mortgage of the same premises to said Burrill, to secure certain notes given for the purchase money.This mortgage is still outstanding, one of the notes secured by it not having been paid.On the same day Eliza, in connection with her husband, gave to Fifield a conditional deed of her half of the premises.This action was commenced by Eliza to recover her half, on the ground of a breach in the condition of her deed.Subsequently, she having deceased, the present plaintiff came in and prosecutes this action as her devisee.

Assuming a breach in the condition as alleged, the plaintiff, standing in the place of her devisor, would be entitled to recover not only as against Fifield, but also all other persons except the mortgagee, or one having his right.As against him, she having only the right of the mortgagor, could not recover.Conner v. Whitmore,52 Me. 185.

The defendants, in order to bring themselves within this rule of law, offer an assignment of the mortgage from Burrill to the defendant, Jewett.This assignment appears to be valid and sufficient to give Jewett all the rights of the mortgagee.But the plaintiff objects to its reception as testimony on several grounds.

It is claimed that under the pleadings it is not competent for the defendants to protect themselves by any other than a joint title superior to that of the plaintiff, and the case of Wyman v. Brown,50 Me. 139, 145, is relied upon.Though that part of the opinion referred to was not necessary to a decision of the case, we see no occasion to question its soundness.But the principles there enunciated have as little application to this case as to that.The brief statement in this action so far as it relates to the manner in which the defendant Mitchell is in possession, contains matter which should have been filed within the time allowed for pleas in abatement.As it was not so filed it comes too late and cannot be considered.The defendants join in the general issue, and upon the issue thus raised the case must be decided.The plaintiff alleges the seizin of her devisor, and a wrongful joint disseizin by the defendants.Their plea admits their possession but denies the alleged disseizin.The burden of proof is upon the plaintiff to show such a title as will give her a better right to the possession than the defendants have.It is a question of title between the parties, but the plaintiff must recover upon the strength of her own and not upon the weakness of that of her opponents.Chaplin v. Barker,53 Me. 275.Whatever, then, is competent to show title in the defendants or rebut that offered by the plaintiff and tending to show that she, under the title set up by her, has no right to possession of...