The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1886-02-08
SuPREM { COURT.
nEFoRE JUDGE HASKELL.


SATURDAY-Charles T. Milliken ct al, in eqqi-
ty, vs.. Kate II. Dockray. This case was heard by
the Court on Thursday, when decision was re-
served, At the coming in of Court this morning
Judge Haskell read the following opinion
James II. D0ckTay having married the respond
ent, and having become seized OF certain parcel
of real estate situated in the city of Portland dur
ing that coverture, and having conveyed the same
to his wife by a conveyance not recorded, mort
gagged such real estate by Two several mortgages
TO secure his own debt. To these mortgages his
wife did not become party, nor therein release
her rights to dover. Afterwards his wife, this re-
sp0ndent having recorded her deed DOckray
died testate deviSing his entire estate to his wild
ow, save the sum of four dollars and appointed
her executrix of his WILL She accepted the trust.
and qualified by giving the requisite bond in the
sum of ten thousand dollars, upon which bond
these orators became her sureties. She entered
into possession of all the estate OF the teStator in
Guiding that conveyed to her by his deed during
c0verture. Five years after Doclray'S decease in
1919. ms estate was represented llselVent. Com
mlssloners were appointed to examine all claims
against the estate, and reported the existence of
such claims to the amount Of seven thousand five
hundred and Seventy-nne dollars and siXty-nine
cents. These claims not being paid, the respond
ent was called TO settle at the expiration of three
years, her account showing in her hand balance
of seven thousand two hundred and eighty eight
dollars and ninety-siX cents. TheTeupon she was
removed from the office of eXecutrx, and Lewis
Pierce was appointed administrator de b0lltS non
with the will annexed. In the spring of 1876 both
of the mortgages which Docllray had given came
to the hands of one holder, Lois Dunlap. Upon
one of these mortgages, proceedings OF forecloS-
ureh had been commenced, and the right to redeem
the property therefrom would be forever barred
on the twenty-ninth of November, 1876.
Mrs. DOckray, the respondent, not having the
means wherewith to redeem the mortgages, APP
applied to the orator Milliken to redeem
them for her, thereby to save the value OF the
equity for her benefit, and to secure themselves
for their liability as snreties upon her probate
bond The orator Milliken acceded to her request
and on the twentieth OF October, eighteen hun
bred and Seventy-siX, before the right of redemp-
ton from one mortgage would become foreclosed,
procured the mortgages assigned to one Fiske and
Mr.. Putnam to hold for his benefit for the purpos-
eS expressed in her request to him. These mort
cages were so held until after the foreclosure of
the right to redeem the mortgaged estate from
one of them had become actually forecloSed,
whereupon, upon the twenty-ninth day of Janua-
~, eighteen hundred and seventy-eght Fiske and
Putnam conveyed the estate to Milliken
The respondent remained in possession Of the
mortgaged estate until after the eighth of
January eighteen hundred and seventy
eight when she was elected by the holders of the
mortgage title Thereafterwards, finding the eS-
tate insolvent, and that she would take nothing
either by her deed or the devise under the will,
she elected to reject both and claim her dover
and distributiye share, and thereupon, after prop
er demand, made on the fifth day Of October,
eighteen hundred and eighty-three, brought an
action OF dover against the orator Milliken, de-
manding that the same should be set out to her
from the real estate which he had acquired under
the deed from Fiske and Putnam No legal de-
tense having been shown to her action, judgment
was rendered in her favor and writ of sezin was
directed to issue. Thereupon this bill was filed
and the respondent restrained pending this suit
from further proceedings in suing out her writ of
seizin granted her in her action of dover.
The orators aver that one of them, Milliken,
holds the locus in trust for the benefit of the re
spondent, having acquired the title thereto at her
request and for the specific aim and purpose to
secure the same from forfeiture, and that its
value above the. encumbrance upon it might be
held to indemnify them for their liability upon her
probate bond wherein suit was threatened.
The orators show themselves to be suretes up
on the bond of the respondent. They have con-
clusiyely proved that they acquired tile property
i'll dispute at the request and suggestion of the
respondent and for her benefit to prevent the for
M no 1ffl nff nn vol nf tnH
the loan that had attached to it might be applied
TO secure themselves from their fiduciary under
taking in behalf of the respondent.
In equity no man is allowed to procure another
to take action for his benefit and then so conduct
himself as to deprive such person of the full bene-
fits incident to such action. Equitable estoppels
have for a long period been applied by courts of
equity to cases wherein the law could give no re
lief That the respondent should induce these
orators 10 redeem the property in dispute for her
benent by extending and laying out thereon a
large sum OF money, in this case amounting to
nearly 1ve thousand dollars, and then be allowed
to depreciate their security by carving from it a
large portion of its value to be enioyed by her.
self, is contrary to all doctrines of equity and
good conscience, and cannot be countenanced
by courts OF equity. The orators are, there
fore entitled to decree placing this property in
trust for the benefit Of the respondent to secure
first the OUTLAWS which, at her request they have
advanced upon it; second, to secure themselves
from liability as sureties upon her bond and that,
until they are repaid such OUTLAWS. including in
terest, and are relieved from all liability upon the
bond upon which they are sureties the reSpon
dent Snoulu De peIpeuudlly enlOlned from laying
any claim to such estate, either by procuring her
writ of seiZin against the same to have her dover
assigned therein, or otherwise, and the case may
stand over until the proper decree can be filed.
W. L. Putnam for compainants.
H. ID. Hadlock for respondent.
Charles P Mattocks vs. John Winslow Jones.
A real action wherein the plaintiff seeks to re-
cover possession of certain piece OF land situated
in Deering, and lying between land OF I. c. Crib
and land of Caleb Jones' estate, and extending
from Cobb Lane to the PresumpscOt river, CON
tanning about 100 acres. 1.-The plaintiff claims title
under certain conveyances from the J. Wlnslow
Jones & Co.. limited. and the liquidatorS of said
company, and the defendant claims title under
certain tax deeds from the town of Deering to
himself. On trial.
Ardon w. Coombs for plaintiff.
Strout, Gage & Strout for defendant.
Court adjourned until Monday at 10 O'Clock
a m.