Snow v. Russell

• Decision Date: 15 December 1800
• Citation: 45 A. 305,93 Me. 362
• Parties: SNOW v. RUSSELL et al.
• Court: Maine Supreme Court

45 A. 305

93 Me. 362

SNOW

v. RUSSELL et al.

Supreme Judicial Court of Maine.

Dec. 15, 1800.

(Official.)

Appeal from superior court, Cumberland county.

Action by Larkin D. Snow against George F. Russell and others. Bill dismissed, and complainant appeals. Affirmed.

This was a bill in equity praying that a judgment in favor of the defendant Russell be annulled, and that a sale made by him under a license granted by the probate court be decreed invalid, and that the defendant Russell and Reuben and Henry B. Higgins, the other defendants named in the bill, be decreed to release all their interest in the premises, and to cancel a mortgage held by them thereon.

The cause came up for hearing by the justice, in the first instance, on bill, answer, demurrer, and proofs, who dismissed the bill, and made the following finding of facts and decisions:

Submit C. Russell, wife of John fl. Russell, died February 7, 1806, testate. Her will was admitted to probate on the third Tuesday of March, 1896. At her death she was seised of the real estate described in the bill, which was appraised at $2,250, and personal estate to the amount of $314.56. She nominated her husband. John H. Russell, executor, who was duly appointed and received letters testamentary. In her will she requested "that no official bond in his said capacity be required to be filed in the probate court by him." The will gave all her property to her husband for life, and then provided that, "at the decease of my said husband, I give and bequeath to my son Lemuel T. Davis, and to my granddaughter, Sarah F. Coyle. and to my bus-band's son. George F. Russell, such sums as my husband may think just and right. At the decease of my said husband, I give and bequeath to my son William W. Davis ten dollars."

March 24, 1896, under this power and in execution of the same, John H. Russell made an appointment under seal to Lemuel T. Davis, $400; to Sarah F. Coyle, $1,009; and to George F. Russell, $1,600, which was to include all sums owing to George by Mrs. Russell.

The descendants of Mrs. Russell living at her decease were her two sons, Lemuel T. Davis and William W. Davis, her grandson, Charles D. Merrill, her granddaughter, Sarah F. Coyle, daughter of William W., and two great grandchildren, Henry Merrill and Frances Merrill. John H. Russell had a son, George F. Russell, by a former marriage. This son was in feeble health, and has always been unable to do hard or persistent work, but for most of the time was able to do chores and light work for and about the house. He came of age in 1881.

For several years before that he had lived with, and been boarded and clothed by, Mrs. Russell. While, a minor he had received from Tewksbury$1,000, which was in a savings bank, subject to the control of his father, who was his guardian. The interest received from the bank appears to have been paid to Mrs. Russell, by her husband, to compensate for care and support of George, until he became 21 years of age, in 1881, and prior to September 15th. Mrs. Russell then requested George to lend her this money to discharge an incumbrance upon her real estate. On September 15, 1881, George drew his $1,000 from the bank, and let Mrs. Russell have it, taking her note for the amount at that date, payable in five years, with interest at G per cent., payable semiannually. It was then agreed between them that while George remained with her she should board and clothe him, and that this should be given and received as payment of the accruing interest upon the note. A fair price for this support would exceed the interest and the value of services rendered by George and the small amount he paid her when he had employment; but I find that Mrs. Russell made no charge to or claim of George for any excess, but was satisfied to offset the support against the interest and the light services that George might render and his occasional small payments, and did not claim, or intend to claim, any additional payment. For a small portion of the time George earned three dollars a week in some outside service, and during that time he paid her two dollars a week towards his support. George remained with, and was supported by, Mrs. Russell from his majority, in 1881, to the death of Mrs. Russell, in February, 1890.

Under the arrangement between the parties, I find that the interest upon the note had been fully paid by Mrs. Russell, in board and clothing, up to her death, and that the principal sum of $1,000 was then due and owing George from Mrs. Russell.

Suit was brought upon this note by George on October 8, 1897, returnable to the November term of the superior court, which was defaulted, judgment rendered, and execution issued for $1,350.50. No indorsements had been made upon the note until a short time before suit was brought, when George indorsed payments of interest in full up to May 15, 1891, and made an indorsement of $14 as of September, 1893, and $18 July, 1894, and $11 August, 1895. He should have indorsed full payments of interest to date of death of Mrs. Russell, in February, 1896, as interest had been paid to that date, in manner before stated.

On or about February 18, 1896, Lemuel T. Davis and Charles D. Merrill made an agreement with John H. Russell, in writing, which is to be referred to as a part of my finding, by which Davis and Merrill were to release their interest in Mrs. Russell's estate, and make no opposition to probate of her will, and were to receive from John H. Russell $1,500.

March 11, 1896, in execution of this agreement, Davis and Merrill delivered to Russell a quitclaim deed of all interest in the estate, and received from Russell his note for $1,500, payable in three years, and his mortgage upon the real estate of Mrs. Russell to secure the same, with one-year foreclosure clause. Russell had obtained a quitclaim from William W. Davis of his interest on February 11, 1896.

This note and mortgage Davis and Merrill sold to John F. Proctor on March 13, 1800. They indorsed the note in blank, and executed and delivered to Proctor on that day an assignment of the mortgage, leaving blank the name of the assignee. Proctor paid Davis and Merrill for the note and mortgage $1,000 cash, and was to allow to Mrs. Merrill for a period of time free rent in his tenement then occupied by her.

Proctor sold the note and mortgage to complainant on or about March 13, 1896, and filled in complainant's name as assignee in the assignment made by Davis and Merrill, and delivered it to Snow. Snow paid $1,500 for the note and mortgage, and had no knowledge of any defense nor of any defect in the title. He was a purchaser for value and in good faith. Interest not being paid, he foreclosed the mortgage by publication, the first publication being July 14, 1897. The notice was duly recorded. These proceedings were in due form of law.

On the 5th day of March, 1898, John H. Russell petitioned the probate court for license to sell Mrs. Russell's real estate, described in the bill, for payment of debts, on which legal notice was given, and on April 13, 1898, that court decreed that he have license to sell at public or private sale, without giving bond. No appeal from this decree was taken. License in due form issued on April 13, 1898.

Under this license, John H. Russell sold the real estate in controversy, by private sale, to George F. Russell for $2,200, the 3d day of May, 1898, and on the same day executed and delivered to George F. Russell a deed of the same, which was recorded in Cumberland registry on May 4, 1898. No objection is made to the regularity of the proceedings after the license was granted.

George obtained from Reuben and Henry B. Higgins $300 on mortgage of the property, executed May 3, 1898, which, together with his execution, were applied towards payment of purchase price.

John H. Russell died in 1898. On February 14, 1896, he was sick in bed with a bronchial cold and feverish, but improved the next day, and was out attending to business on February 18th. The doctor found him with pneumonia on the 20th, and delirious. He was confined to his bed till March 2d or 3d, and was not downstairs till the 6th or 7th of March. His physician left him March 7th. For some days before that his physician testified that his mind was clear, but he was physically weak.

Russell was present at the office of Mr. T. L. Talbot on February 18, 1896, when the agreement with Davis and Merrill was executed there by all the parties. He then appeared to be in possession of his mental faculties and capable of doing business. On March 9th his and was clear, though physically weak. On March 12, 1890, when the mortgage from Russell to Davis and Merrill, bearing date March 11th, was in fact executed, Russell was in his house, weak in body, but talked Intelligently about the business.

The evidence now introduced fails to satisfy me that, either on February 18th or March 12th, Russell was incapable of transacting business understandingly.

Complainant claims that the note to George F. Russell is paid and barred by limitation; that the judgment thereon was collusive; that John H. Russell should have defended, and was guilty of fraud in not doing so; that the sale under license from the probate court was void because no bond was given; that the mortgage of Russell to Davis and Merrill was upon a valuable consideration, and operated to convey title to all the real estate which Russell had acquired under the will of his wife, and deeds of release from Lemuel T. Davis and William W. Davis, sons, and Charles D. Merrill, a grandson, of Mrs. Russell. He prays by his bill that the judgment in favor of George F. Russell be annulled, the sale under license decreed invalid, and that George and Reuben and Henry B. Higgins be decreed to release to complainant all their interest in the premises, and to cancel the Higgins mortgage.

The defendants claim that on February 18, 1896, when the agreement with Davis and Merrill was...