The Somerset reporter. [volume] (Skowhegan, Me.) 1868-1909, 1901-02-07
Somerset Cases.

Declslons III tue 1OllOWlnR somerset
Cases have recently been received from
the law court by Clerk of Courts Wm. r.
Seekins.
Charles V. Lock vs john z. Norton.
Rescript by Wiswell, Chief Justice.
Although an instruction To the jury
may be erroneous, 1t does not follow
that exceptions thereto should be sus-
tanned. 1t must also appear that the
excepting party was prejudced by the
Instructions complained OF.
A person In possession of real estate by
the permission OF the owner, and under
contract of purchase is entitled to the
crops gathered by him while his possession
Is allowed to continue. The relations of
the land owner aud the person In posses.
sion by his permission, under contract
OF purchase, are analogous, as far as the
ownership OF the crops is concerned, to
those OF landlord and tenant, or mortgage
es In possession and MORTGAGE.
Such land owners cannot maintain
E2x for. commission of crops by the
person In possession, II served by him
while his possession is allowed to con-
tinue.
Held: that in this case the plaintiff
did not retake possession of the farm un-
I'll after the corps sued for had been
gathered and taken away by the defend.
ant under the permission received by
him from the person who was in posse
sion under a contract TO purchase, and
that n jury would not be justified In
finding otherwise. Exceptions over
ruled.
Frank S. Bigeow ct al VS.. Levi r.
Bigelow.
Rescript by Wiswell G.. j.
In the former decision of this case,
when 1t came 70 the law court upon the
plaintiffs motion for a new trial (93 NJ
i39) the court inadvertently failed to
apply to state of facts which, it was
said, the jury might have been authoriz-
ed in finding, principles of law that are
quite elementary.
In order TO constitute valuable con-
sideration for the promise, neither the
benefit to the promissor nor the detri-
ment TO the promissee, need be actual, it
would be detriment to the promissee,
in legal sense, if he, at the request of
the promissor and upon the strength of
his promise, performed any act which
occasioned him the slightest trouble or
Inconvenience, and which he was not
obliged, to perform.
Ii contract existed between the
mortgagor and mortgagee made before
the mortgage was given, rs claimed
whereby the latter promised to convey
farm to the former upon the perform.
ance of certain acts by the mortgager,
the performance by him Of these acts
which constituted a consideration for
the contract, followed by his going into
possession of the property with the
knowledge and consent of the owner,
and making expenditures thereon, al
though not sufficient to entitle him to u
conveyance, II the promise was merely a
voluntary one TO make a gift, under the
| circumstances of the case, would be
sufficient to take the case out of the
operation of the statute of frauds, and to
authorize court of equity, in the ex-
ercise OF its sound discretion, to decree
specific performance of the contract to
convey.
IL this was the true state OF facts, the
mortgage under which the plaintiffs
claim was without consideration and the
plaintiffs would not be entitled to either
a common law or conditional Judgment
At the trial, the presiding Justice,
following the former decision, ordered
a verdict for the plaintiffs, thus taking
the questions of fact involved from the
jury. This was erroneous. Exceptions
sustained.
George II. Morse vs. John N. Stafford,
Rescript. A mortgage, or the assignee
OF mortgage, may maintain a real
action against person in possession
OF the mortgaged premises and obtain
a common law judgment for possession,
without the production of the notes
| referred to in the mortgage, or other
evidence of the existence of some por-
| ton of the mortgage Indebtedness,
except the mortgage itself, where there
| is no evidence, 10 the contrary and no
circumstances from which a payment
of the Indebtedness may be inferred.
1t would be otherwise If either party
that was entitled to do so should ask
for conditional judgment, in that
case the plaintiff would be compelled
to introduce evidence showing that
something, and how much, was due
upon the mortgage debt. Or il. there
was evidence tending to show that the
debt had been fully satisfied, then it
would become Il question to be deter
mined, and If the debt should be found
to have been fair, the holder of the
mortgage would not be entitled to a
judgment for possession.
la the absence of all other evidences
upon the question of payment, the
mortgage itself, without the production
of the notes or any evidence accounting
for their non-production, is prima facie
evidence of the existence OF the debt
at the time, and is sufficient to entitle
the plaintiff to possession of the mort
gagged premises and to common law
Judgment therefor, when neither party
entitled to do SO moves for conditional
judgment.
If it is claimed that the relation OF
landlord and tenant exists between
the MORTGAGE and the mortgagor, or
one claiming under the latter, it must
be proved, as this relation is not pre-
sumed to exist between such parties
and does not grow out of the relations
of mortgage and mortgagor.
Judgment for Plaintiff for possession
of the demanded premises.
wnFkIp0 nvarfIroa