Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-02-04
Law Court Decisions.

chief Justice Wiswcll Of the Na;ro
supreme court has handed down 70.
scripts in three cases-two Of Soroarsa,
ana one Of Knox; they are az follows:
Frank $. Bigelow ct al. rs. Levi r
BigcloW ct ais. Rescript
Wiswcll. &. J. In the former decision
Of this case when il came to the Law.
count upon the plaintiffs motion for j
new trial, (g3 Me. 429D the court mad
Nertently failed to apply to a state Of
facts. which, it was said, the iurv
might have been authorized in finding
principles Of law that are quite ele-
moAtary.
In order to constitute a valuable con
sidcration for the promise. neither the
/ benefit to the promissor nor the detri-
ment to the promissee need be actual:
it would DO a detriment to the promi-
soc. in legal sense if he. at the re-
quest 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.
If a contract existed between the
mortgagor and mOrtgag gee, made be-
fore the mortgage was given, as
claimed. whereby the latter promised
10 convey farm to the former upon
the performance of certain acts by the
ortgagor. the performance by him of
these acts which constituted a consid-
Grafton for the contract. followed by
his going into possession Of the prop
crty with the knowledge and consent
.F he L inc 1fii
lures thereon. although not sufficient
to entitle him to conveyance, if the
promise was merely a voluntary one to
make a gift. under the circumstances
of the ease. would be sufficient to take
the case out Of the operation of the
statute Of frauds. and to authorize
court of equity, in the exercise Of its
sound discretion, to decree specific per
Torrance of the contract TO convey.
Ii this was the true state Of facts, the
mortgage under which the plaintiffs
claim was without consideration ana
the plaintiffs would not be entitled to
either a common law or conditional
judgment
At the trial, the presiding justice. fol-
lowing the former decision. ordered 4
verdict for the plaintiffs, thus taking
the question of fact involved from the
jury. This was erroneous.
Exceptions sustained.
Somerset. S. George II. Morse vs.. John
y. Stafford. Rescript.
Wiswell. C. J. a mortgage. or the as
signee Of a mortgage, may maintain a
real action against person IN possession
of the mortgaged premises ana obtain
common law judgment 10: pcsSessluii'
without the production OF the notes re-
ferred to in the mortgage. ar other evl-
dence of the existence of some portion
of the mortgage indebtedness, except the
mortgage itself. where there IS no cyl
dcnce to the contrary and no circum-
stances from which a payment OF the III
dehtedness may be inferred.
1t would he otherwise If either parry
that was entitled to do so should ask LOT
a conditional judgment: in that case the
plaintiff would be compelled 70 introduce
evidence showing that something, anu
how much, was due upon the mortgage
debt. of if there was evidence tending
to show that the debt had been fully sat
isficd. then il would become a question 70
he determined. and if the debt should te
found to have been paid. the holder OF the
mortS cage would not be entitled 10 JudS-
ment for possession.
In the absence of all other eNideltce
upon the question Of payment. the mort
gage itself without the production OF the
notes or any evidence accounting f0r
their non-pruduction. is prlma tacie es4-
denCe of the existence of the debt AT W"
time and is sufficient to entitle the plain
tiff to possession of the mortgaged prem
Uses and to a common law judgment
therefore. when neither party emitted p
do 50 moves for q conditional judgment.
If it is claimed that the relation OF
landlord and tenant exists between the
mort gage and mortSdgor. or one claim
ing under the latter, ii must he proved
MS this relation Is not presumed 70 exs
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