Rowell v. Mitchell

■ DaNfoeth, J.

This is a writ of entry to recover possession of an, undivided half of certain lands described, and comes before this court upon report. It appears from the plaintiff’s testimony that Eliza Mitchell and one of the defendants, Fifield Mitchell, on the twenty-first day of August, 1865, purchased the land of Scammon Burrill and took a deed of the whole lot as tenants in common ; at the same time the said Eliza and Eifield joined in a mortgage of the same premises to said Burrill, to secure certain notes given for the purchase money. This mortgage is still outstanding, one of the notes secured by it not having been paid. On the same day Eliza, in connection with her husband, gave to Eifield a conditional deed of her half of the premises. This action was commenced by Eliza to recover her half, on the ground of a breach in *25 the condition of her deed. Subsequently, she having deceased, the present plaintiff came in and prosecutes this action as her devisee.

Assuming a breach in the condition as alleged, the plaintiff, standing in t he place of her devisor, would be entitled to recover not only as against Fifield, but also all other persons except the mortgagee, or one having his right. As against him, she having only the right of the mortgagor, could not recover. Conner v. Whitmore, 52 Maine, 185.

The defendants, in order to bring themselves within this rule of law, offer an assignment of the mortgage from Burrill to the defendant, Jewett. This assignment appears to be valid and sufficient to give Jewett all the rights of the mortgagee. But the plaintiff objects to its reception as testimony on several grounds.

It is claimed that under the pleadings it is not competent for the defendants to protect themselves by any other than a joint title superior to that of the plaintiff, and the case of Wyman v. Brown, 50 Maine, 139,145, is relied upon. Though that part of the opinion referred to was not necessary to a decision of the case, we see no occasion to question its soundness. But the principles there enunciated have as little application to this case as to that. The brief statement in this action so far as it relates to the manner in which the defen dantJMitcholl is in possession, contains matter which should have been filed within the time allowed for pleas in abatement. As it was not so filed it comes too late and cannot be considered. The defendants join in the general issue, and apon the issue thus raised the ease must be decided. The plaintiff alleges the seizin of her devisor, and a wrongful joint disseizin by the defendants. Their plea admits their possession but denies the alleged disseizin. The burden of proof is upon the plaintiff to show such a title as will give her a better right to the possession than the defendants have. It is a question of title between the parties, but the plaintiff must recover upon the strength of her own and not upon the weakness of that of her opponents. Chaplin v. Barker, 53 Maine, 275. Whatever, then, is competent to show title in the defendants or rebut that offered by the plaintiff and tending to show that she, under the title set up by her, has no right to possession of the premises, is admissible in evidence. Even *26 a title in a stranger is competent for the purpose of rebutting that of the plaintiff. Jackson in his work on Neal Actions, page 161, thus states the law:- “It appears that the rule which prevents a tenant from showing a title in a stranger, is confined to those cases in which a tenant is also setting up a title in himself. So long as he is merely repelling and disproving the claim of the demandant, he may for that purpose show an adverse title in a stranger.” 2 Green. Ev., § 556, and cases cited in note.

By the deed and mortgage introduced by the plaintiff, she has shown an instantaneous seizin only in her devisor and no right of possession, as against the mortgagees. If, then, Burrill was the defendant, she must fail upon her own showing. The action is not against him, therefore she has an apparent right. But it must be competent to show that such apparent right is not a real one; that notwithstanding the action is not against Burrill nominally, it is against one who legally stands in his place and is entitled to all his rights. This the assignment effects.

But it is still objected that the plea is joint and the title thus set up is the title of only one. If the defendants were seeking to establish an independent title in themselves, this suggestion would be entitled to very grave consideration. In such case the burden of proof would be upon them and they might well be holden to establish such title in this respect as by their plea they rely upon. Apply the same principle to the plaintiff. In her writ she alleges a joint disseizin, and claims possession against both defendants. Taking all the proof relating to the title upon which she rests her claim, and it not only fails to sustain her allegations, but shows conclusively that there is no such joint disseizin, and that she is not entitled to the possession, which she asks against both. It may be true that Mitchell alone could not set up such defense, for the act of setting up the mortgage as a valid claim would in itself be a breach of the condition in his deed, nor would it avail him if he could, as he is not mortgagee. But this cannot prevent Jewett from so doing, for he is mortgagee, and if her title is not sufficient to prevail against both she cannot have judgment in her favor. Varnum v. Abbot, 12 Mass. 474, 479, 480 .

*27 Another objection is that as Jewett now has Mitchell’s title, he takes it with all its infirmities, and is equally bound with him to discharge the mortgage, or at least is estopped from setting it up as a defense. So far as Jewett does rely upon that title the effect claimed would seem to follow. Mitchell could only convey subject to the condition, and his grantee would be bound by it, and if he had first purchased the conditional titles, so far as he subsequently performed any act imposed by that condition, we might have inferred that it was done in obedience to the obligation flowing from it, and quite possibly the mortgage might have been held as discharged, notwithstanding the assignment. But the case shows that the assignment of the mortgage from Burrill was previous to any conveyance from Mitchell to him. As he took the proper steps to uphold the mortgage as a subsisting title, a subsequent quitclaim deed from Mitchell of his interest in the premises, in the absence of other testimony, can not legally control his title under the mortgage.

It is further claimed that the mortgage is discharged by the tender which is proved. This tender was made after condition broken and after possession, and not accepted. It is well settled in our state, as well as in Massachusetts, that a tender under such circumstances may lay the foundation for a bill in equity for redemption, but will not enable the mortgagor to get possession by an action at law. Wilson v. Ring, 40 Maine, 116. Stewart v. Crosby, 50 Maine, 130. Maynard v. Hunt, 5 Pick. 240 . Currier v. Gale, 9 Allen, 522 . Howe v. Lewis, 14 Pick. 329 .

It is also claimed that even if Jewett is entitled tc possession under the mortgage, yet, as he now has the interest of Mitchell, the plaintiff may have a qualified judgment against him, so far as that interest is concerned, “not disturbing any possession taken under the mortgage,” and several eases in Massachusetts are relied upon. We have no occasion to question the law of those cases,, but we do not find them applicable to this. The principle settled there is that a mortgagee may have a qualified judgment against a prior mortgagee, who is also the owner of the equity of redemption. This judgment is in the nature of a decree in equity, and its purpose and effect is simply to foreclose the mortgage', *28 without changing the actual possession. But in the case at bar the plaintiff, has no mortgage to foreclose. We are considering the case upon the assumption that the condition in the deed to Fiiield Mitchell has been broken. Under the entry on that ground, the deed becomes a nullity and no time for redemption remains. The plaintiff in her writ seeks for no foreclosure, but asks for possession, absolute and entire. She is simply a mortgagor, and not under any circumstances a mortgagee. The defendant Jewett is mortgagee; and, though as having a deed from Fiiield, he may be mortgagor to himself, if one person can sustain the two positions; he is in no sense mortgagor to the plaintiff.

As the view we have taken decides this case only, and not the rights of the parties to the land, except under the mortgage, the entry should be, Plaintiff nonsuit.

Appleton, C. J., Walton, Yirgin, Peters and Libbey, JJ., concurred.