Smith v. Emery

• Decision Date: 13 December 1909
• Citation: 106 Me. 258,76 A. 686
• Parties: SMITH v. EMERY.
• Court: Maine Supreme Court

76 A. 686

106 Me. 258

SMITH

v. EMERY.

Supreme Judicial Court of Maine.

Dec. 13, 1909.

Bill by Herbert Smith against S. Benton Emery. On report. Bill dismissed.

Bill in equity for an accounting against the defendant, whom he claimed to be the equitable mortgagee of one Leonard Smith, deceased, to whose rights he succeeded by assignment. Reported to the law court for determination. The facts, as stated by Mr. Justice BIRD, who prepared the opinion, are as follows:

This bill in equity is brought for the redemption of sundry parcels of land from a conveyance alleged by complainant to be an equitable mortgage. The case is before us on report, for determination upon bill, answer, and proofs.

In the month of November, 1897, one Leonard Smith was the owner in possession of a homestead, a wood lot, and one-fifth in common and undivided of a lot and store in Sanford and a wood lot and farm in Shapleigh. The homestead was subject to mortgages to defendant, to secure the payment of notes for $1,000 and $380, executed February 26, 1895, and March 8, 1897, respectively. The store and lot were subject to a mortgage to defendant to secure payment of a note of $380, executed July 15, 1897, and all the parcels were under mortgage to one Nason, dated September 10, 1896, to secure payment of a note for $900. The interest upon all these notes was evidently in arrears. Several judgments had been rendered against Smith, which remained unsatisfied, and he was liable upon sundry simple contracts. He was financialy embarrassed, and applied to defendant early in November for a further loan, to be secured by mortgage upon all the parcels of real estate. The defendant testifies without contradiction, that he declined to make a loan upon mortgage, or to make any further loan upon any mortgage security plaintiff could offer. November 20, 1897, Smith executed and delivered to defendant a warranty deed of the five parcels of land, and received from defendant his check for $553.43 and his bond in the penal sum of $3,000. The bond recites the agreement of defendant to convey to complainant the parcels of land conveyed to defendant by deed of even date, and the agreement of Smith to pay the defendant the sum of $3,000 in two years, with interest semiannually, and is conditioned that, after payment of said sum and interest at or before the time due, and all taxes and expenses incurred by the obligor, and at request of Smith, his heirs, etc., the obligor shall convey the real estate with good title to the obligee, his heirs, etc. The bond further provides that the obligee shall have possession of the "premises until he shall have failed to perform the conditions of this bond." There is evidence tending to show that the value of the property conveyed was from $4,000 to $6,000 or $7,000. The check was at once applied to the satisfaction of executions in favor of one S. Pendexter and of one Nason, for $230.95 and $215.01, respectively, and in payment of the claim of one Crediford. The deed was recorded November 27, 1897, and the bond October 19. 1906. December 6, 1897, defendant procured the assignment to himself of the Nason mortgage for the sum of $941. None of the mortgages above mentioned, given by Smith earlier than November 20, 1897, appear to have been discharged of record, and all of them, the notes secured thereby, and the two executions uncanceled, were produced and offered in evidence by defendant. Smith never offered nor made payment of $3,000 and interest to defendant, or any part thereof, and died June 10, 1907. During his lifetime he remained in possession of, the homestead, and defendant is not shown to have exercised any dominion over the other parcels, except that he received from the agent of the co-tenants Smith's proportion of the net rents of the store for two years ending July 1, 1904, $36.27 and $38.20, respectively, and upon the destruction of the store by fire in April, 1905, he received from the agent one-fifth of the insurance, $390. Defendant states that the amounts received by him as rents he gave to Smith as a present. During the last year of his life Smith was sick, and in need and distress, and his wants were supplied by defendant, who, at his decease, provided for his burial.

Since the decease of Leonard Smith, defendant has repaired the homestead at an expense of some $400 or $500. Complainant urges that, in the event an accounting be ordered, the sums expended for the benefit of deceased and repairs by defendant cannot be allowed to him.

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