(Official.)
Exceptions from supreme judicial court, Knox county.
Bill in equity by George L. Snow against Andrew Pressey to redeem a mortgage. The bill was sustained, and the cause sent to a master to determine the amount due under the mortgage. 82 Me. 552, 20 Atl. Rep. 78. To the master's report plaintiff brings exceptions. Exceptions overruled.
The bill avers as follows:
"(1) That on the 3d day of March, 1874, the complainant was seised in fee of seven undivided eighth parts of a certain parcel of real estate therein described, situate in Rockland.
"(2) That on said 3d day of March the complainant executed and delivered a mortgage of said real estate to one G. W. Candee and the defendant to secure payment of the sum of $4,000 in four equal payments of $1,000 each, in four, eight, twelve, and sixteen months from the date thereof, with seven per cent. interest, according to the tenor of four promissory notes of the same date given by the complainant to said Candee and the defendant.
"(3) That on the 1st day of May, 1884, one Julius A. Candee, executor of said G
W. Candee, then deceased, conveyed and assigned to the defendant all the interest which said G. W. Candee had at his decease, and which said executor then had, in and to said mortgage and notes.
"(4) That on the 16th day of August. 1878, the complainant conveyed to the defendant all his right, title, and interest in and to said premises by his quitclaim deed, and of that date, appearing on its face to be absolute, and that the defendant then, and as part of the same transaction, executed and delivered to the complainant a separate instrument of defeasance, of the tenor following, to wit: '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. Snow, 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, 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.]'
"(5) That the defendant, in the year 1878, entered into said premises, and took possession, by complainant's consent, of an undivided portion thereof, to wit, one limekiln, a portion of the lime sheds and other buildings and structures, and wharves, and has remained in possession thereof ever since, and has received rents from other portions thereof.
"(6) That on the 11th day of November, 1887, the complainant demanded, in writing, of the defendant, a true account of the amount due on each of said mortgages, and of the rents and profits, money expended in repairs and improvements, if any, and also the strip and waste committed upon the premises.
"(7) That the complainant has frequently requested the defendant to render such an account, and to pay over the amount received by the defendant above the amount due him, and to surrender said premises, all of which the defendant has refused to do."
The relief prayed for is "that an account may be taken; that the defendant pay over such sum, if any, that he has received above the amount due him; that compensation be decreed for strip and waste; that the complainant may be allowed to redeem; that the defendant surrender said premises to the complainant, and release the same to him, on payment by the complainant of such amount, if any, as may be found to be due the defendant, and for other and further relief."
The answer is as follows:
"(1) Defendant admits the first and second allegations of the bill.
"(2) Defendant claims that the mortgage to Candee and himself has been forever foreclosed.
"(3) The defendant admits the third allegation of the bill.
"(4) Defendant denies that the quitclaim deed and instrument described in the fourth clause of the bill constituted a mortgage, and alleges that the quitclaim deed of August 16, 1878, was an absolute conveyance of the premises.
"(5) Defendant admits that he has been in possession of the premises, and has received the rents and profits thereof, since August 16, 1878.
"(6) Defendant denies that he is under any obligation to account to the complainant."
The bill was sustained, (82 Me. 552, 20 Atl. Rep. 78,) and the following decree entered:
"That the bill be sustained, and that the defendant account for all rents and profits received by him from the premises described, or by any other person or persons by his order or for his use, or which he without his default might have received, and the case be sent to a master in chancery, with directions to hear the parties, determine the amount with which the defendant is to be charged for such rents and profits, and all matters of account between the parties in relation to the mortgage debt, and make report thereof, with the amount, if anything, due on the mortgages."
To the master's report both the complainant and the defendant excepted.
The following are extracts from the master's report bearing upon the points raised by the exceptions:
"I find that on the 3d day of March, 1874, the complainant mortgaged the property described in the bill to Gilead W. Candee and the respondent, who were then copartners in business under the firm name of Candee & Pressey, to secure the payment of four thousand dollars.
"And it was agreed at the hearing, and I find, that there was due said Candee & Pressey on said mortgaged indebtedness, June 10, 1875, $3,782.60.
"I further find that said firm of Candee & Pressey was dissolved in 1875 or 1876.
"I find that April 13, 1875, the complainant was indebted to the estate of Israel Snow in the sum of $16,804.43; that at said complainant's request, and on his account, respondent individually purchased said indebtedness, and paid therefor $6,721.77, it being
forty per cent.; that respondent paid this amount of his own funds, but took an assignment of said indebtedness to Julius Candee and himself, he and the said Julius being then copartners in the firm of Candee & Pressey.
"And I find that on account thereof the complainant became and was indebted to the respondent in said sum of $6,721.77 on said April 13, 1875.
"I find that subsequently, during the years 1875 and 1876, complainant shipped quantities of lime to the respondent's firm, and that out of the proceeds of said shipments the respondent retained: 1875, April 30, $1,000; 1875, May 26, $1,000; 1875, August 19, $1,000; 1876, August 4, $300—and rendered an account therefor to the complainant.
"At the hearing the complainant claimed that no legal appropriation had ever been made by the parties of the said $3,300, and that it should be applied in the reduction of the mortgage indebtedness.
"But the respondent claimed, and I find, that said amounts so retained were legally appropriated at the time towards the payment of the $6,721.77 advanced by respondent for complainant April 13, 1875.
"I find that August 16, 1878, complainant quitclaimed his interest in the premises in question to the respondent, and as a part of the same transaction the respondent gave back an agreement under seal in which he covenanted and agreed with the complainant that on receipt of the mortgage indebtedness hereinbefore described, or an amount equal thereto, together with the interest thereon, with the amount of all other legal claims due said Candee & Pressey, he would reconvey the premises to the complainant The complainant thereupon, on said August 16th, took possession of the premises, and has remained in exclusive possession thereof up to the time of the hearing.
"I find that August 17, 1878, Julius Candee assigned to the respondent all his interest in the Israel Snow indebtedness. The respondent claimed that he was in possession under a deed absolute in form, and under such circumstances that he might well believe and did believe himself to be in fact owner of the estate, subject only to an agreement to sell, and I so find.
"August 19, 1878, Gilead W. Candee and respondent were sued by the executors of one I. C. Abbott on account of transactions of complainant as the agent of Candee & Pressey. The respondent claims that complainant was not their agent in fact, but that the said transaction related to the complainant's own business, and I so find.
"September 25, 1878, respondent paid of his own funds $1,100 to settle said suit, and I find that this was done at complainant's request, and made him debtor to the respondent, individually, for said sum of $1,100.
"I find that on May 1, 1884, the executor of Gilead W. Candee assigned to respondent the orginal mortgage, dated March 3, 1874. * * *
"Respondent claimed that under the agreement of August 16, 1878, he was entitled to charge the complainant the $6,721.77 paid by him for complainant on account of the Israel Snow indebtedness, and interest thereon. Respondent also claimed that under said agreement he was entitled to charge the $1,100 paid after the making of the agreement, it being, to wit September 25, 1878, on account of the suit of the executors of Abbott; that is, respondent claimed that under the agreement he was entitled to charge any sums due G. W. Candee and himself jointly, or any sums due either individually, whether due at the time of the...
