Libby v. Mayberry

Supreme Judicial Court of Maine

Libby v. Mayberry

13 A. 577, 80 Me. 137, 1888 Me. LEXIS 29

CourtSupreme Judicial Court of Maine

DecidedFebruary 1, 1888

StatusPublished

Cited by1 cases

This text of 13 A. 577 (Libby v. Mayberry) 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

Libby v. Mayberry, 13 A. 577, 80 Me. 137, 1888 Me. LEXIS 29 (Me. 1888).

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Opinion

Walton, J.

The ruling of the presiding justice (by whom the action was tried without a jury) that no license from the judge of probate is necessary to enable an executor to assign a mortgage of real estate, held by the testator at the time of his decease, was correct. Such mortgages, and the debts thereby secured, are personal assets in the hands of executors and administrators, and may be sold or otherwise disposed of by them, at any time before a foreclosure is completed, the same as personal property pledged to the testator. So declared by statute, E. S., c. 90, § 12. And a sale or assignment of such mortgages by an executor or administrator is valid without a license from the judge of probate. Crooker v. Jewell, 31 Maine, 313.

The ruling that the tax deed through which the defendant claimed title was insufficient to convey a title, was correct. The recitals in a tax deed are not evidence of the truth of the facts stated. Phillips v. Sherman, 61 Maine, 548. And, if they were, the recitals in the deed referred to, fall very far short of showing that the tax was legally assessed, or that the land was legally sold for the non-payment of it. It does not appear that the land was described with such fullness and accuracy as the law requires. "Twelve acres pasture lot,” is the only description given of it, except that it is in the town of Poland. In what part of the town, ■ or how bounded, is not stated. Nor is the number or range of the lot stated." Such a description is clearly insufficient. Nor does it appear that the sale was within two years from the date of the collector’s warrant. R. S., 1871, c. 6, § 173; R. S., 1883, c. 6, § 200. The recitals in the deed are in other particulars defective; but,, as already stated, the recitals, if complete, would not be evidence of the truth of the facts, stated, and it is unnecessary to examine them further.

Exceptions overruled. Judgment affirmed.

Peters, C. J., Virgin, Libbey, Foster and Haskell, JJ., concurred.

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Walton, J.

The ruling of the presiding justice (by whom the action was tried without a jury) that no license from the judge of probate is necessary to enable an executor to assign a mortgage of real estate, held by the testator at the time of his decease, was correct. Such mortgages, and the debts thereby secured, are personal assets in the hands of executors and administrators, and may be sold or otherwise disposed of by them, at any time before a foreclosure is completed, the same as personal property pledged to the testator. So declared by statute, E. S., c. 90, § 12. And a sale or assignment of such mortgages by an executor or administrator is valid without a license from the judge of probate. Crooker v. Jewell, 31 Maine, 313.

The ruling that the tax deed through which the defendant claimed title was insufficient to convey a title, was correct. The recitals in a tax deed are not evidence of the truth of the facts stated. Phillips v. Sherman, 61 Maine, 548. And, if they were, the recitals in the deed referred to, fall very far short of showing that the tax was legally assessed, or that the land was legally sold for the non-payment of it. It does not appear that the land was described with such fullness and accuracy as the law requires. "Twelve acres pasture lot,” is the only description given of it, except that it is in the town of Poland. In what part of the town, ■ or how bounded, is not stated. Nor is the number or range of the lot stated." Such a description is clearly insufficient. Nor does it appear that the sale was within two years from the date of the collector’s warrant. R. S., 1871, c. 6, § 173; R. S., 1883, c. 6, § 200. The recitals in the deed are in other particulars defective; but,, as already stated, the recitals, if complete, would not be evidence of the truth of the facts, stated, and it is unnecessary to examine them further.

Exceptions overruled. Judgment affirmed.

Peters, C. J., Virgin, Libbey, Foster and Haskell, JJ., concurred.

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Bluebook (online)

13 A. 577, 80 Me. 137, 1888 Me. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/libby-v-mayberry-me-1888.

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