Smith v. Larrabee

58 Me. 361

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1870
• Status: Published

Opinion

Kent, J.

The question in this case, on the merits, is whether the mortgage, assigned to the defendant, has been legally foreclosed. If' it has not been, the prayer for redemption should be granted. If it has been, the prayer must be denied.

The defendant claims that a foreclosure was perfected by advertisement, in the mode pointed out in R. S. of 1841 (then in force), c. 125, § 5. The complainants deny that it has been thus legally foreclosed, for various reasons, which are set forth and urged in argument.

It is objected, in the first place, that the defendant, or Bragg, his assignor, was not in a situation in which he could avail himself of this mode of foreclosure, because, it is alleged, ho was at the time of publication in possession of the premises, and therefore could not pursue this mode.

The premises named in the mortgage are timber and woodland, and it appears by the agreed statement of facts, that both Bragg, the mortgagee, and the defendant, his assignee, have at different times, before and since the publication, given permits to others to cut timber on the land, and have received payment therefor. Assuming that these facts sufficiently establish a possession, the question is whether such possession debars the foreclosure in this mode, and compels the party to resort to some other mode.

The law allows a mortgagee to have or to obtain possession for other purposes than foreclosure. The statute of 1841, c. 125, § 2, authorizes a mortgagee to enter on the premises or recover possession by suit and judgment before any breach of the condition of tlie mortgage, when there is no agreement to the contrary. But this entry and possession has no relation to foreclosure, and -is of no effect for that purpose, although continued for more than three years. The mortgagee, if he would foreclose, must proceed independently of such entry, before condition broken. Now he being in possession, how can he foreclose his mortgage, under the provisions of the statute ? He is not in a condition to commence an action at law for possession, for he is already in possession. He may, we think, when thus in possession, commence a proceeding for foreclosure, after condition broken, by the written consent of the mortgager, or person holding under him. Or by a peaceable and formal entry for that purpose, in presence of witnesses, as provided in §§ 3, 4. We do not think that the law requires him to abandon his former possession absolutely, before he can resort to these methods. But by either of these modes he may change his former entry and possession into one for foreclosure, although the statute in terms gives the right thus to foreclose to those only who, after a breach of the condition, “ are desirous of obtaining possession for the purposes of foreclosure.” A fair construction of the statute will authorize a party, in possession for one purpose, to obtain a new possession of a different character from the former, i. e. one for the purpose of- foreclosure. But in all these cases it is provided that this new possession, thus obtained, must be continued for the three following years.

The statute then goes on (§ 4) to provide for the case where the mortgagee is not desirous of taking and holding possession of the premises. It allows such person to foreclose by advertisement in a .newspaper, or by serving a notice of his intention to foreclose on the mortgager or his assignee.

The question is, in this case, whether a mortgagee in possession, not for the purpose of foreclosure, can avail himself of this mode of foreclosing by publishing or serving a copy. It would be difficult to assign any valid reason why the law should not allow him to adopt this mode. It is certainly very plain and satisfactory. It is generally a better mode than any other, short of a suit, to give notice in fact to all parties interested. If the notice is personally served, it is equal to notice by suit. There is nothing in the nature of the possession, before breach of the condition, which renders this mode more inapplicable than the one by written consent or by entry in presence of witnesses.

But it is urged that the statute, in its terms, restricts the use of this provision to one “ not desirous of taking or holding possession.” We, however, are of opinion that the intention of the legislature in this provision was simply to provide for the case, where the mortgagee did not wish to avail himself of any of the provision:; of the law, to obtain by that proceeding possession of the premises. By the other modes, possession in fact was obtained. By this mode the party obtains no possession, nor any new rights relating to the possession. Pie simply obtains a right to have the three years allowed for redemption commence running. If he is in a condition not to desire or to need the aid of any process or proceeding, under the law, to obtain possession, he may adopt the manner in question by advertisement or personal notice. Any other construction of these several provisions would seem to debar the mortgagee in possession before condition broken, from the use of any of the modes of foreclosure.

2. It is also objected that there has been a failure to comply with the subsequent provision of the section, which requires that “a copy of such printed notice, and the name and date of the newspaper in which it was last published, be recorded in each registry of deeds in which the mortgage is, or by law ought to be recorded.”

The facts in this case bearing on this point are, that one parcel of the land included in the mortgage is in the county of Piscataquis, and one in the county of Somerset. A notice was published by the mortgagee in a newspaper printed in each county, the first and subsequent publications in both counties being on the same days. The notices were alike, except that one referred to the mortgage deed as recorded in Piscataquis, and the other as recorded in Somerset Eegistry of Deeds. In both, the mortgagee claimed to foreclose the whole mortgage, on the ground of a breach of the conditions of the mortgage.

The notice published in Piscataquis was duly recorded in the registry of that county, and the one published in Somerset was duly recorded in that county. The register of each county duly certifies to the fact of such record. But there is no certificate or evidence that the notice published in Somerset was copied and recorded in Piscataquis, or vice versa. The objection rests on this last fact; and the question is, whether this omission to record the two notices, as published in the registry of each county, is fatal to the attempted foreclosure.

Each notice, as published, describes, as before stated, both tracts, and informs the reader that by that notice the mortgagee claims to foreclose the whole mortgage.

The general rule is, that the registry of deeds in a county is intended for the record of matters pertaining to the title to real estate lying within the limits of that county only. It is not the place where any record touching the title to land in any other county is usually found, or where any person is required to look for such record. If a person desired to ascertain the state of the title to a particular tract of land, he would examine the records of the county in which the land was situated, and no other. In this case the inquirer would find, in looking at the registry in Piscataquis, that the notice there recorded declared an intention to foreclose the whole mortgage, and that one of the tracts was in Somerset county. Now if both the notices had been there recorded, and also a certificate made in that registry of the names and dates of both newspapers in which the notice had been printed, it would not have shown that-the same record had been made in Somerset county. It would still be necessary to examine the records in that county. The register of one county cannot properly certify that the records in another county, contain certain matters. If he does, then his registry would contain a record touching land in another county, which would seem to be out of place there, giving no information, so far as the land in the other county was concerned, which could be relied on as legal evidence of the fact, or be of any value or importance in itself.'

But it is insisted that the statute is imperative, and can bear no other reasonable construction than that which requires a registry of both notices in each county, together with the names and dates of both newspapers in which it was published.

The original act of 1838, c. 33, which first provided for this mode of foreclosure, did not seem to contemplate the case of a mortgage of land in two or more counties, but simply provided that the newspaper notice should be recorded in the registry of deeds where the mortgage is recorded. But in the revision in 1841, it is evident that this section was amended to meet the case above slated. It may, perhaps, be doubtful whether the legislature intended that more than one notice should be required to be published in a newspaper, even when the lands were in different counties. The statute names only a notice “ in the (a) newspaper printed in the county where the premises are situated,” and then provides that “ a copy of such printed notice, and the- name and date of the newspaper in which it was last published, be recorded in each registry of deeds, in which the mortgage deed is or by law ought to he recorded.”

The object of this provision is manifest. It is that each registry shall contain a record of the notice to foreclose the mortgage, so that the inquirer may find there all the proceedings affecting the title in that county, where he wonld naturally look for them. To effect this object, it is not necessary to multiply the number of newspapers in which the notice is to he published. Such publication is to give notice to the mortgager or his grantee. It is not required to he in the county in which he lives. The words, “ in the county where the premises are situated,” may he complied with, if the notice is printed in the county in which any part of the premises are situated. If, having the question directly before them, the legislature had intended to require a newspaper publication in each county, it would seem probable that in the revision they would have used language which would clearly indicate the intent.

The construction that a single newspaper notice, recorded in each registry where the mortgage deed is or should be recorded, is all that is required, is strengthened by the limitation of thirty days after the last publication, in which the record is to be made. In this case, it singularly happens, that both notices were published in the two counties on the same day, and the last publication in each was on the same day. But this could happen but seldom, particularly if the land was located in three or four different counties. If there were several notices, ending on different days, from which would the thirty days be reckoned ? And so as to the three years for redemption given to the mortgager after the publication.

But it is unnecessary for us to determine this point absolutely, because in this case the notice was published in both counties. But the same general course of reasoning would lead us to the conclusion, that the object of the law is complied with, if the registry in each county contains a record of the notice of foreclosure published in that county, with the name and date, etc., of the newspaper, although it does not contain a record of a copy (almost in duplicate) of the same notice published in a newspaper in another county, with a certificate of publication in such newspaper outside of the county. We have seen that such certificate would be in no sense a compliance with the law, requiring a registry of the copy in each county, and could not be proof of any fact touching the registry in the other county. We think the foreclosure not fatally defective for this cause.

It is next objected, that there is no sufficient evidence that the published notices were given by the mortgagee, as required by the statute. It appears that they were signed “ Carlton S. Bragg, by Albert W. Paine, his attorney.”

It was decided in Treat v. Pierce, 53 Maine, 71, that the unauthorized signing and publishing of a notice of a foreclosure cannot, by a subsequent ratification by the mortgagee of the act, be rendered operative from the date of its publication. But in that case the defendant introduced affirmative evidence to prove, that the notice was signed and published by the person signing as attorney, when he was not sudi attorney, and had no authority or request from the mortgagee to publish the notice. These facts were proved. On these facts, the court held, for reasons given in the opinion, that a subsequent ratification and adoption of the act could not make the notice operative from the date of publication. But the question was not raised, whether, in the absence of all proof by the plaintiff, it was necessary for the defendant to prove the authority of the agent, by evidence beyond the prima facie presumption.

In the case at bar, it appears that Bragg — the mortgagee in whose name the notice was published — recognized and adopted the act of Mr. Paine and his signature as his agent, by assigning, with the mortgage, to the defendant all the rights and benefits of a foreclosure commenced by him. This must refer to the notice in question, as there is no pretense that any other has ever been attempted. And the defendant — the assignee — claims and insists upon the foreclosure thus commenced by notice, signed by attorney.

There is no evidence that this recognition by the mortgagee was made after the act. We think, that, in the absence of any such evidence, we may fairly and properly presume that it relates to the time of publication. We think, that where a notice is published and signed with the name of the mortgagee or person holding the mortgage, “by A. B., his attorney,” and the party afterwards recognizes and adopts the proceeding, and claims rights under it, and claims that it is effectual to foreclose, that it is not necessary for him to produce further evidence of attorneyship; but he may rely on these facts as prima fade sufficient, until impeached or qualified by other testimony.

The objection that the premises are not “ intelligibly ” described, as required by the statute, is not tenable. The description in the notice is clearly sufficient to inform those entitled to redeem, with reasonable certainty, what premises are intended. Chase v. McLellan, 49 Maine, 375.

The complainants finally insist, if the court should be of the opinion that the notice, as published and recorded, was a sufficient commencement of the process of foreclosure, yet that the facts agreed in relation to the after possession and receipt of stumpage, by the mortgagee and the defendant, his assignee, show a 'waiver of the foreclosure begun.

It has been decided, that the commencement and prosecution of an action at law on the mortgage is a waiver of an entry to foreclose made previously. Smith v. Kelley, 27 Maine, 237.

There are other cases, some of which are cited by the complainants’ counsel, which go far to establish the general principle he contends for, that after the mortgagee has commenced a foreclosure 'in any of the modes permitted by the statute, he may change his intention and waive the foreclosure by acts which show such change of intention, being in themselves inconsistent with the further prosecution of the foreclosure in the manner first commenced.

Admitting the correctness of this general doctrine, the question arises, what act here shown is inconsistent with a purpose to avail himself of the foreclosure by notice in the newspapers ? We have seen that the object and the effect of such mode is not to obtain' possession, and that it does not in fact have any bearing on the actual possession. It neither gives nor takes away in the matter of such possession. If, therefore, he could cause the notice to be published when in such possession, as has been before explained, i. e. giving permits and receiving stumpage, without any surrender of such possession, we can see no waiver of such attempted foreclosure, or any fact that is inconsistent with such continuing purpose and intent, by the subsequent receipt of income by the same means from the premises. There has been no attempt to obtain possession by any of the other proceedings named in the statute, and no indication of any purpose to abandon the mode now relied upon.

A preliminary question was raised, whether this bill can be sustained in Penobscot county, as the land lies in other counties, although the defendant and some of the complainants live in the county in which the bill is brought. On consideration, we are satisfied that a bill for redemption may be sustained in this county. It is in the nature of a personal action. It seeks only for a final decree requiring the defendant to do a specific personal act, viz., release the premises. The deed he gives must be recorded in the registry of the county where the land lies. This keeps the record title perfect. The obligation to do this, where there has been a legal redemption, is one that attaches to the person wherever he is. The rule is, “ equitas agit in personam,” and this doctrine has been applied where the bill was brought to foreclose a mortgage where that mode was allowed by law.

If a mortgage can be foreclosed by a bill brought in the county, a fortiori, it can be redeemed by such a bill. This case illustrates the practical difficulty of a rule which should absolutely require, in* all cases, that the bill be brought in the county in which the land lies. In which of the counties should it be commenced ? Or must there be two distinct bills, or, in case of land in four or five or more counties, in one mortgage, must there be a bill in each ? .

Without entering into a more extended discussion of this point, we will simply refer to a few authorities in which the question is considered. Story Eq. Jur., §§ 743, 744, 899, 900; Great Falls M. Co. v. Worster, 3 Poster (N. H.), 463, and cases there cited; Toller v. Carteret, 2 Vern. 494.

The conclusion is, that the foreclosure was perfected, and the bill cannot be sustained.

Bill dismissed with costs for defendant, but under the circumstances of this case, no costs to be taxed in the nisi prius court after the entry of the case in the law court.

Appleton, C. J.; Walton, Dickerson, Barrows, and Tapley, JJi, concurred.'

The following dissenting opinion was drawn by

Cutting, J.

Bill in equity brought in Penobscot county to redeem lands situated in Somerset and Piscataquis counties. The first question presented is, as to the jurisdiction of this court, sitting in the former, to adjudicate in matters touching real estate being in the latter counties. Or, in other words, whether equity will overrule the distinction at law between local and transitory actions.

“ The court has cognizance of civil actions, legally brought before it, between party and party. B. S., c. 77, § 2.

I am aware of no statute or rule of the common law which confers a greater jurisdiction on a court of chancery than that of law, as it respects local or transitory actions. In both instances the question arises, whether the process is in rem or in personam ; the former when touching the realty, and the latter the person.

No legislation from the most remote period has compelled a party to defend his castle beyond the vicinage of his own peers; for, in a *court of equity, it is notorious, that questions of fact frequently arise which are presented to a jury.

At law, so particular have courts been in maintaining this principle, they have invariably held that an assignee of covenants running with the land, cannot sustain an action for a breach except in the county where the estate is situated. Lienow v. Ellis, 6 Mass. 331; Clark v. Scudder, 6 Gray, 122; White v. Sanborn, 6 N. H. 220. It is said, that “ chancery is ordained to supply the law, not to subvert the law.” Lord Bacon proclaimed it, and Judge Story has cited it as a motto in the title-page of his Equity Jurisprudence.

The only authority cited, tending to sustain our jurisdiction, is from the same author (2 Story’s Eq. Jurisprudence, § 744), wherein it is held, that in order to entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is sufficient, that the parties, to be affected and bound by the decree, are resident within the State or county where the suit is brought, for the primary decree is in personam and not in rem. The incapacity to enforce the decree in rem constitutes no objection to the right to entertain such a suit.

Here, it may be remarked, that the learned author was speaking of a bill for a specific performance of a contract, which is only a chose in action, on which a suit at law may be brought in any county where either party resides.

But in a later edition, that section is enlarged by adding, that in the State of Pennsylvania it had been held, that a court of equity sitting in and for one county, had no jurisdiction over a bill praying for an injunction against the erection of a nuisance in another county; and this after a full review of all the authorities.

In conclusion, it may be remarked, that we know of no law giving a larger venue to a court of equity tlian to that of law, as to which the true rule is laid down in Bouvier, where he says, “ In local actions, in which the subject or thing to be recovered is local, the action must be brought in that county where the cause of action arose; among these are all real actions, and actions which arise out of some local subject, or the violation of some local rights or interest, as the common law action of waste, trespass quare clausum, fregit, trespass for nuisances to houses or lands, disturbance of right of way, obstruction or diversion of ancient water-courses, etc.,” sustained by numerous authorities.

A bill in equity for the redemption of mortgaged real estate puts in issue the title, and is in its nature a real action, and as such has the common-law venue, unless that venue has been enlarged by statute. But the equity powers of this court are limited, confined to a certain specified jurisdiction, and not that enlarged power, such as is conferred upon the chancery court of England, and of some of the American States, as cited by Story. This principle has been so frequently enunciated by this court, that it becomes needless to cite authorities to sustain it.

Now what statute has ever been enacted in this State enlarging the common-law venue, so far as it respects local and transitory actions? We know of none except, perhaps, in cases of charters of certain railways extending into contiguous counties.

The question here raised might have been presented on demurrer and decided on inspection, but error in pleading, or even consent of parties, will not confer jurisdiction,