Jewett v. Mitchell

Supreme Judicial Court of Maine

Jewett v. Mitchell

72 Me. 28, 1881 Me. LEXIS 30

DecidedJanuary 6, 1881

StatusPublished

This text of 72 Me. 28 (Jewett v. Mitchell) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jewett v. Mitchell, 72 Me. 28, 1881 Me. LEXIS 30 (Me. 1881).

Pincite

Opinion

Peteks, J.

This is a proceeding under the forcible entry and detainer act.

The respondent and another, being the owners of the premises sued for, mortgaged them to Scammon Burrill, who assigned the mortgage to the complainant. The respondent afterwards gave to the complainant a quitclaim deed of the entire premises, receiving back an agreement, not under seal, for a reconveyance when certain conditions were performed.

It is contended that the process does not lie, because the complainant is not the possessor of the absolute title to all the premises, being an owner of one half and a mortgagee (by assignment) of the other half. Such a defence cannot be set [30]*30up by the respondent. His grantee can expel Mm from the premises which he has a deed of from him. The respondent does not defend under any title held by any person other than himself.

It is contended that the parties to the suit stand in the relation to each other of mortgagor and mortgagee, and that the complainant must fail on that account. There is no doubt, under our present statutes, that the quitclaim deed and the unsealed agreement to reconvey constitute an equitable mortgage. But the respondent’s right cannot be recognized in any proceeding at law. It is a mortgage in equity and not in law. His remedy is in equity and not at law. There are various kinds of equitable mortgages, and it would lead to many embarrassments, under our system of jurisprudence, to admit equitable defences to actions in courts of law. The only reason that a process of forcible entry and detainer does not lie by a mortgagee against the mortgagor, is, that a conditional judgment cannot be rendered in such a case, and the right to a conditional judgment is allowed in all actions between such parties by statute. Here the objection is not in the way. Walker v. Thayer, 113 Mass. 36; Reed v. Elwell, 46 Maine, 270; Dunning v. Finson, Id. 546 ; Jones on Mort. (2d ed.) § 720.

The respondent, after his deed to the complainant, was removable under the process sued out against him. Larrabee v. Lumbert, 34 Maine, 79.

Judgment for complainant.

AppletoN, C. J., Walton, Barrows, DaNFORth and SymoNds, JJ., concurred.

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Peteks, J.

This is a proceeding under the forcible entry and detainer act.

The respondent and another, being the owners of the premises sued for, mortgaged them to Scammon Burrill, who assigned the mortgage to the complainant. The respondent afterwards gave to the complainant a quitclaim deed of the entire premises, receiving back an agreement, not under seal, for a reconveyance when certain conditions were performed.

It is contended that the process does not lie, because the complainant is not the possessor of the absolute title to all the premises, being an owner of one half and a mortgagee (by assignment) of the other half. Such a defence cannot be set [30]*30up by the respondent. His grantee can expel Mm from the premises which he has a deed of from him. The respondent does not defend under any title held by any person other than himself.

It is contended that the parties to the suit stand in the relation to each other of mortgagor and mortgagee, and that the complainant must fail on that account. There is no doubt, under our present statutes, that the quitclaim deed and the unsealed agreement to reconvey constitute an equitable mortgage. But the respondent’s right cannot be recognized in any proceeding at law. It is a mortgage in equity and not in law. His remedy is in equity and not at law. There are various kinds of equitable mortgages, and it would lead to many embarrassments, under our system of jurisprudence, to admit equitable defences to actions in courts of law. The only reason that a process of forcible entry and detainer does not lie by a mortgagee against the mortgagor, is, that a conditional judgment cannot be rendered in such a case, and the right to a conditional judgment is allowed in all actions between such parties by statute. Here the objection is not in the way. Walker v. Thayer, 113 Mass. 36; Reed v. Elwell, 46 Maine, 270; Dunning v. Finson, Id. 546 ; Jones on Mort. (2d ed.) § 720.

The respondent, after his deed to the complainant, was removable under the process sued out against him. Larrabee v. Lumbert, 34 Maine, 79.

Judgment for complainant.

AppletoN, C. J., Walton, Barrows, DaNFORth and SymoNds, JJ., concurred.

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72 Me. 28, 1881 Me. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jewett-v-mitchell-me-1881.

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