Smith v. Varney

• Decision Date: 30 August 1973
• Citation: 309 A.2d 229
• Parties: Percy H. SMITH et al. v. Mary M. (Smith) VARNEY et al.
• Court: Maine Supreme Court

Page 229

309 A.2d 229

Percy H. SMITH et al. v. Mary M. (Smith) VARNEY et al.

Supreme Judicial Court of Maine.

Aug. 30, 1973.

J. Armand Gendron, Sanford, for plaintiffs.

John D. Bradford, Biddeford, Thomas J. Reagan, Kennebunk, for defendants.

Before WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

PER CURIAM.

Plaintiffs have appealed from a judgment entered in the Superior Court (York County) in a civil action brought by plaintiffs seeking a declaratory judgment to determine their rights in three particular parcels of land. The judgment adjudicated that plaintiffs are entirely without rights in said parcels.

We deny the appeal of plaintiffs by adopting the opinion written by Armand A. Dufresne, Jr., Chief Justice, Supreme Judicial Court, who acted in this proceeding as the Justice presiding in the Superior Court.

The opinion of Chief Justice Dufresne is hereinafter set forth in full.

'Plaintiffs, Percy H. Smith and Ida M. Smith, husband and wife, on October 21, 1963 brought a complaint for declaratory judgment seeking a judicial adjudication of the rights of the parties to three parcels of land described in paragraphs 1 and 2 of their complaint, all under 14 M.R.S.A. §§ 5951-5963. From twenty-three defendants originally named, only two, Roger Bragdon and Gerry A. Gile, were not defaulted and remained active defendants in the proceeding. Roger Bragdon died intestate on December 24, 1965 and his daughter, Marjorie B. Keyes, the duly appointed administratrix of his estate, was substituted for him as party defendant under Rule 25(a)(1) M.R.C.P. By subsequent amendment, duly allowed, Gile Orchards, Inc., a purchaser of part of the land, was brought in as an additional party defendant under Rules 19 and 21, M.R.C.P.

'The parties agree that the plaintiffs are successors in title to whatever interest Edgar L. Smith might have in the real estate in dispute between the parties and that as of March 2, 1931 Edgar L. Smith was the sole owner in fee simple of that real estate, to wit, the 36-Acre Lot and the 32-Acre Lot referred to in paragraph (1) of plaintiffs' complaint, and of the Scribner Lot referred to in paragraph (2) of the plaintiffs' complaint. (See consent interlocutory judgment entered in the Superior Court for York County on May 31, 1967.)

'The facts may be summarized as follows: Edgar L. Smith, plaintiffs' predecessor in their chain of title, on March 2, 1931 conveyed the disputed parcels of land to Roger Bragdon by valid mortgage deed as security for the payment of the sum of eight thousand ($8,000.00) dollars on demand with interest at the rate of six (6%) per centum per annum. This mortgage deed was recorded in the York County Registry on November 16, 1931. The parties agree that this mortgage has never been foreclosed. On October 7, 1932 Edgar L. Smith executed another valid mortgage deed of the disputed parcels to Casco Mercantile Trust Company (Casco), subject to all incumbrances of record and unpaid taxes, if any. This mortgage deed, recorded in the York Registry on October 9, 1932, contained full covenants of a warranty deed, the covenant against incumbrances, however, excepting the incumbrances of record and unpaid taxes as previously stated in the other part of the deed. This second mortgage was given as security for all obligations then owing to, or thereafter to be incurred by Smith with, the Casco Mercantile Trust Company. The bank on November 24, 1936 started foreclosure proceedings on the Smith mortgage, the first publication of notice of foreclosure being on November 28, 1936. The one-year period of redemption ran out on November 28, 1937. These foreclosure proceedings were initiated by the conservator of the bank, the conservatorship dating from March 18, 1933. In 1947, however, the conservator, deeming the bank's rights subject to the first mortgage of no value to the conservatorship, petitioned the Court having jurisdiction of the conservatorship, for the right to renounce all right, title and interest which he had in the disputed parcels and to abandon the same. This request was duly granted by order dated November 24, 1947.

'The plaintiffs contend that the decree of abandonment revested in the plaintiffs, as successors in title of Edgar L. Smith, the equity of redemption in the first mortgage, in other words, worked an automatic assignment of the equity of redemption which Casco owned in the premises from Casco to them. I cannot agree with the plaintiffs' non-sequitur.

"A mortgagor, or person claiming under him, may redeem mortgaged premises within one year after the first publication of the notice of foreclosure, and if not so redeemed, his right of redemption is forever foreclosed. Revised Statutes, 1930, chapter 104, section 7. This right of redemption, once extinguished, cannot be revived by any court, nor can the period of redemption be abridged or enlarged by operation of law. Courts must abide by the statutory requirements except in exceptional cases where a court of equity may provide relief. See Carll v. Kerr, 1914, 111 Me. 365, 89 A. 150. The instant case does not fall within any exception to the general rule.

"In First Auburn Trust Co. v. Buck and Wellman, 1940, 137 Me. 172, 16 A.2d 258, our Supreme Court has said the accepted doctrine in Maine is that a mortgage is regarded as a conditional conveyance vesting the legal title in the mortgagee. When Smith executed the first mortgage to Bragdon, all that remained in him was the equity of redemption, i.e., the right to redeem the property by payment of the indebtedness for which the real estate was conveyed as security. This is known as the equitable title. When Smith executed the second mortgage to Casco, he conveyed to the bank his equity of redemption from the Bragdon mortgage. This is all he had to convey and when the period of redemption from the foreclosure of the bank mortgage expired, then the right to redeem from the Bragdon mortgage vested in the bank and Smith had forever lost any interest whatsoever in the disputed parcels of real estate. Casco's equity of redemption in the Bragdon mortgage could under no possible theory of law revert to the mortgagor or his successors in interest, since the mortgagor's interest as such in the real estate was...