Wyman v. Porter

• Decision Date: 07 March 1911
• Citation: 108 Me. 110,79 A. 371
• Parties: WYMAN et al. v. PORTER.
• Court: Maine Supreme Court

79 A. 371

108 Me. 110

WYMAN et al.

v. PORTER.

Supreme Judicial Court of Maine.

March 7, 1911.

Report from Supreme Judicial Court, Franklin County, at Law.

Real action by Miles H. Wyman and another against Charles N. Porter.On report.Judgment for defendant.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

E. E. Richards and H. S. Wing, for plaintiffs.

Frank W. Butler, for defendant.

SPEAR, J.This case comes up on report.It is a writ of entry for the possession of certain lots of land in the town of Eustis, Franklin county, containing 200 acres more or less, and known as the "Robinson Pasture."The defendant pleads the general issue—did not disseise.This puts in issue the plaintiffs' title.Under this plea defendant may rebut the plaintiffs' proof; set up title in himself (Rowell v. Mitchell, 68 Me. 21); or merely show that the plaintiffs have no title except title conveyed by plaintiff under which the defendant does not claim (Stetson v. Grant, 102 Me. 222, 66 Atl. 480, and cases cited;Brown v. Webber, 103 Me. 60, 68 Atl. 456).The burden is on the plaintiffs to show the title they have alleged (Stetson v. Grant and Brown v. Webber, supra), and must recover, if at all, upon the strength of their own title (Day v. Philbrook, 89 Me. 462, 36 Atl. 991;Coffin v. Freeman, 82 Me. 577, 20 Atl. 238, and cases cited).If the plaintiffs show no title, they cannot prevail even though the defendant has none.Derby v. Jones, 27 Me. 357.Possession under color of title is better than no title.Stetson v. Grant, supra.Under these familiar rules of law the evidence in this case is to be considered.

The plaintiffs in support of their title offered a warranty deed from Abner and Philander Coburn to Miles Standish of Flaggstaff and quitclaim deeds from the heirs of Miles Standish of the premises in question.This made a prima facie case for the plaintiffs for 65/108 interest in the premises described in the deed and in the writ.Stetson v. Grant, supra, and cases cited.

In defeasance of the plaintiffs' title, the defendant says there are no equities in favor of the plaintiffs, inasmuch as the defendant for a valid debt 18 years previous to the date of this writ had purchased and since been in possession of the locus in question under a sheriff's deed, and supposed he had a good title, until it was discovered by the plaintiffs that there was a defect in the notice of the sale which resulted in a technical defeat of his title, and that since such discovery the plaintiffs had bought in the title from the various heirs of Miles Standish, who held prima facie title from the Coburns.The defect in the defendant's title was due to the failure of the officer in advertising the sale upon levy to post notices in the organized plantations adjoining the town of Eustis, as required by statute.

The defendant by sheriff's deed being in possession under color of title (Butler v. Taylor, 86 Me. 17, 29 Atl. 923), it is incumbent upon the plaintiffs, to entitle them to possession over the defendant, to show a record or prescriptive title.The latter they do not claim.The former seems to be beset with the same technical defects that are invoked by the plaintiffs to defeat the execution title of the defendantThe defendant starts out with the advantage that possession under color of title is better than no title.Stetson v. Grant, supra.The plaintiffs' claim under warranty deed from the Coburns to Miles Standish makes a prima facie case as already seen.The defendant"may however, always show that the plaintiff obtained nothing by his deed."Stetson v. Grant, supra.This the defendant undertakes by endeavoring to show that the Coburns received no title from their grantors and had no title to convey to Standish, and that through the various mesne conveyances the plaintiffs"obtained nothing by their deed," as he says the following records will disclose.

By mesne conveyances from the state of Massachusetts a part of the locus in quo came into the possession of Nathaniel S. Ames of Boston, as assignee of a mortgage.Through Ames the title purports to vest in Tames B. Robb of Boston as follows: Ames began foreclosure proceedings July 29, 18-10, by publication, and, before the equity of redemption had expired, died.Marcia C. Ames was appointed administratrix of his estate, in Boston, February 6, 1843.December 12, 1844, after the equity had expired, she, as administratrix assigned the mortgage to James B. Robb.Robb by quitclaim deed In 1844 conveyed his interest in 65/108 of the locus to various parties, which interest by various quitclaim deeds was acquired by Abner and Philander Coburn.The validity of the Coburn's title, therefore, depended upon the validity of Robb's title.The defendant now contends: (1) That the foreclosure attempted by Ames was void; and (2) if not void, the equity of redemption had expired, and the realty vested in the heirs before the date of the assignment; and (3) that the assignment was ineffectual to convey title even to the mortgage as a chattel—in either event that no title to the land passed to Robb.The foreclosure was clearly defective.It purported to be by publication, and the certificate failed to comply with the statute in not stating that the paper was printed in Farmington as well as published there.The statute of 1840(Rev. St. 1841) chapter 125, § 5, required that the publication notice should be in the newspaper printed in the county where the premises are situated.Our courts have repeatedly decided that foreclosure upon such a notice is invalid.Bragdon v. Hatch, 77 Me. 433, 1 Atl. 140;Savings Bank v. Lancey, 93 Me. 429, 45 Atl. 523, 74 Am. St. Rep. 361, and cases cited.The assignment of the mortgage to Robb was made by Marcia C. Ames, administratrix of the estate of Nathaniel F. Ames, late of Boston.But Marcia C. Ames, appointed administratrix by the probate court in Massachusetts, had no authority to assign a mortgage on real property in the state of Maine.Brown v. Smith, 101 Me. 545, 64 Atl. 915, 115 Am. St. Rep. 339;Cutter v. Davenport, 1 Pick.(Mass.)81, 11 Am. Dee. 149.But the plaintiffs say that the defendant has not shown that ancillary administration was not taken out in Maine.We do not think it was necessary.When he had established the fact sufficient to break the plaintiffs' claim of title, it was then incumbent upon the plaintiffs to rebut it.The defendant, having shown a break in the record title of the plaintiffs, cannot be called upon to repair it.The burden is then imposed upon them to affirmatively overcome the defect.

It would therefore appear that James B. Robb had acquired no legal title to that part of the property in question which he undertook to convey by his quitclaim deed of 1844, and that therefore no legal title through Robb by mesne conveyances vested in the Coburns.We have no occasion here to consider the equities involved.

Another portion of the locus is claimed by the plaintiff through a title originating in a conveyance purporting to be made from Silvanus Mitchell and Zenas Keith to Robert Ayer.The source of the grantors' title does not appear; but inasmuch as they took a mortgage from Ayer, and the Coburns' title depends upon the legality of the foreclosure, the source of the original title becomes immaterial.This mortgage was subsequently assigned to Alexander H. Twombley of Boston, who attempted to foreclose it by publication.The foreclosure certificate was invalid for the reasons stated in the Ames foreclosure, supra.There was, however, connected with this attempted foreclosure, another defect which may have been fatal.The certificate of foreclosure contained no signature.Therefore the grantees of Twombley, a mere assignee not in possession, acquired no legal title by their deeds, and the Coburns had no legal title to convey to Standish.

The plaintiffs, however, claim that the quitclaim deed by Twombley, although he was only an assignee of the mortgage, was effectual to convey title under the doctrine of Johnson v. Leonards, 68 Me. 237.

But under the facts in this case, there being no evidence that the mortgagee or the assignee had made entry or had transferred the mortgage debt, the rule laid down in Lunt v. Lunt, 71 Me. 377, seems to apply.

In Johnson v. Leonards the mortgagee in 1862 before entry to foreclose and without possession gave a quitclaim deed to the defendant's predecessor of all his "right and interest" in the mortgaged premises, but did not transfer the mortgage debt.In December, 1863, he assigned the mortgage of the identical premises, embraced in the quitclaim deed, to the plaintiff and delivered to her the note secured thereby.The opinion holds upon this state of facts as follows: "The mortgagee, therefore, having conveyed all his interest in the mortgaged premises to Stocking by his quitclaim deed of July 8, A. D. 1862. bad no remaining estate therein to pass to the plaintiff by his assignment of December 20, A. D. 1863."In other words, the mortgagee assigned the mortgage, and debt secured thereby to the plaintiff, after having quitclaimed to the defendant, and the latter deed is held, not to operate as an assignment, but to convey the legal title.

In Lunt v. Lunt, 71 Me. 377, the assignees of the mortgage by quitclaim deed conveyed to the defendant two-ninths of the mortgaged premises.This deed, so far as we are able to see, conveyed precisely the interest that the deed in the above case purported to convey, and it appears from the opinion that the same question was raised.The court say: "But it is claimed that by the quitclaim deed of Sally Lunt and Timothy G. Lunt to the tenant, of January 25, 1868, an interest in real estate of two-ninths of the Noble lot passed to her.But such is not the law.The interest of a mortgagee before entry is not real estate, but a personal chattel.The interest in land is inseparable from the debt.It is an incident to the debt...