Snow v. Pressey

• Decision Date: 28 May 1890
• Citation: 82 Me. 552,20 A. 78
• Parties: SNOW v. PRESSEY.
• Court: Maine Supreme Court

20 A. 78

82 Me. 552

SNOW

v. PRESSEY.

Supreme Judicial Court of Maine.

May 28, 1890.

(Official.)

Appeal from supreme judicial court, Knox county.

An appeal by defendant from a decree in favor of plaintiff after hearing on bill, answer, and proofs.

This was a bill in equity to redeem a mortgage. At the hearing at nisi prius the presiding justice ordered the bill to be sustained, and that the defendant account, etc.

The defendant contended that he held the premises under an absolute deed, and that his agreement to reconvey them to the plaintiff did not render the transaction a mortgage.

The bill alleged "that this conveyance and deed of quitclaim to the defendant, appearing on its face to be absolute, and with a separate instrument of defeasance, which the complainant here in court will produce, and which was then and there executed and delivered by the said Andrew Pressey to your complainant as part of the same transaction, constituted a mortgage. "

It appeared that on August 16, 1878, the plaintiff quitclaimed the premises, then subject to a mortgage given by him March 3, 1874, to the defendant and one Candee, his partner, to this defendant, who on the same day executed to the plaintiff the following instrument:

"Know all men by these presents, that I, Andrew Pressey, of Brooklyn, Kings County, New York, in consideration of a conveyance of certain real estate this day made to me by George L. Show, of Rockland, in the county of Knox and state of Maine, to-wit, a quitclaim of all of said Snow's interest in and to the premises described in a mortgage deed from said Snow to said Pressey and another, recorded in Knox Registry of Deeds, in book 36, page 252, I do hereby covenant and agree with the said Snow, and his heirs or legal representatives, that on the receipt of the amount of the said mortgage claim of G. W. Candee, of New York city, and said Andrew Pressey, or an amount equal thereto, together with the interest thereon, with the amount of all other legal claims due said Candee and Pressey, I will reconvey the premises aforesaid to the said George L. Snow, his heirs or legal representatives, by a good and sufficient deed, including the interest of said G. W. Candee therein.

"In witness whereof, I have hereunto set my hand and seal this 16th day of August, A. D. 1878.

"ANDREW PRESSEY. [L. S.]"

Candee's interest in the mortgage of March 3, 1874, was assigned and transferred May 1, 1884, to the defendant; and it was admitted by the parties that on August 16, 1878, there was a breach of the condition of this mortgage.

The plaintiff in his bill also alleged "that the said defendant, at said Rockland, during said year of 1878, but the precise date is to him unknown, entered into said land and premises and took possession of an undivided portion thereof, viz., one limekiln, a portion of the lime-sheds, and other buildings, structures, and wharves, by the consent of the complainant, and as the result of an agreement and understanding between them, and has remained in possession thereof. * * *"

The defendant claimed, on the other hand, that he took possession of the premises under the mortgage of March 3, 1874, for the purpose of foreclosure, and put in evidence the following certificate, which he claimed was a full compliance with Rev. St., c. 90, §3, cl. 3:

"Know all men by these presents that I, Andrew Pressey, of Brooklyn, Kings county, state of New York, one of the mortgagees of mortgage herein described, on this sixteenth day of August, A. D. 1878, in presence of J. H. Flint and Charles H. Pressey, openly and peaceably, not being opposed, for condition of mortgage broken, entered upon certain premises situate in Rockland, in the county of Knox and state of Maine, fully described in a mortgage deed from George L. Snow, of Rockland, to G. W. Candee, of New York, and Andrew Pressey aforesaid, dated March third, A. D. 1874, and recorded in Knox Registry of Deeds, book 36, page 252, and for the purpose of foreclosing all the right in equity of said George L. Snow to redeem the same, and that I then and there did, in the presence of two witnesses, foreclose the same in manner and form required by law.

"ANDREW PRESSEY.

"We, J. H. Flint and Charles H. Pressey, certify that Andrew Pressey, above named, entered upon the above-described premises, for the purpose set forth in the foregoing certificate, peaceably and without opposition, in our presence, and took possession of said premises, for the purpose of foreclosure of said mortgage for condition broken.

"J. H. FLINT.

"C. H. PRESSEY.

"State of Maine—Knox, ss.:

"August 16, 1878.

"Then personally appeared J. H. Flint and Charles H....