Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-12-11

u.
Reed Dec. TO- 1908.
Knox County-Jennie A. Munro. In Equi-
ty. VS.: Sophia M. Barton, ct al Re-
script by Whitehouse, ].
This is bill in equity brought to re-
deem a mortgage of certain real estate
situated in the town of Vinalhaven, Civ
en- by William Brown to Timothy Fernald
December 2S. 1895, and recorded in the
registry of Hancock county, which then
comprised the town of Vinalhaven. The
original bill was dated March u. 1895 and
the subpoena served on the defendant.
agreement of the parties the bill was
lnended after it was filed in court by in
'erting an allegation respecting the own
ership of the undivided eighth part of the
mortgaged premises not represented by
the plaintiff and also by making the de-
PENDANTS husband Watson V. Barton.
who holds title to one acre of the prem
es Described party fc to TO- this BIZ The
of the law court on bill. answer and
proof. In her bill the plaintiff offered to
pay what should be found due upon the
ton nor proof of any prior tender of
payment or performance. nor of any de-
mand upon the MORTGAGE. or persons
claiming under him for true account of
the sum due upon the mortgage and a
neglect of refusal on his or their part to
render such account as required by stat
ute. Nor were there any ave"mentS in
the hill showing that a tender could not
be made or that the defendant in any
way by her default had prevented the
plaintiff from performing or rendering
performance of the condition of the mort
gage. Cnder these circumstances, it was
held by the court that the bill could not
be maintained (95 Maine. 262) and the
cause was thereupon remanded for any
or demand and refusal to account which
the facts might warrant. An amend.
mcnt setting forth demand and refusal
to account has been duly filed and the
cause is now before the court a second
time on report for final decision upon the
merits of the cause.
At the date of the mortgage in question
the premises conveyed consisted of 50
acres of unproductive land only n small
patch being under cultivation. and slab
rooted cabin or ''shanty'' upon it about IA
feet square. William Brown acquired ii
tie to the place for $50 by deed hearing
date December 26. 1885. and both parties
derive title from him. VIM. H. Brown,
one of the four children of VIM. Brown,
acquired title to five-eighths of it by pur
chase from the other heirs and then made
Il voluntary conveyance of his entire
seven-eighths to this plaintiff. his daugh-
ter. who then bore the name of Jennie A.
Toman. The defendant derives title
through several mesne conveyances from
the mortgagee of William Brown. 1t has
been seen that William Browns mort
gage to Timothy Fernald was dated De
20
date of Browns deed of purchase, and
was given to secure the payment of $65
and interest in one year from that time.
This appears to have been the entire con
siera ton of the deed to Brown and the
mortgage was doubtless given as a part
Of the same transaction for the purpose
If raising the money to purchase the
place. Timothy Fernald, the mortg agee.
assigned the mortgage to Reuben Lead
better by an assignment bearing date
FEBRUARY II. 1915, but not acknowledged
until December 80. 1915. and recorded Jan
nary 6. 1916. On the same day February
Il. 1s45) Fernald gave to Ieadbetter
warranty deed of the place in cousidera-
ton of $50 He also commenced proceed
making perceable entry upon the prem
Uses in the presence of two witnesses Jan
uary 9. 1916. and recording certificate of
the fact in Waldo county to which Vinal-
10. 1853. I.eadbetter conveyed the property
to Dennis Conway by warranty deed for
the same consideration of so. December
81. 1878. Dennis Conway conveyed one acre
Of the lot to Hannah S. Brown who con-
veyed the same to the defendant Watson
V. Barton. November 49, 1892. August Is.
1870 Dennis Conway gave his son Refus
Y Conway a warranty deed of the resi-
due of the place in consideration of $500.
September IS, 1885. Rufus Y. Conway con
veyed by warranty deed to Lane and Lib
by. and May Y. 1886. Lane and Libby con-
veyed to the defendant Sophia NJ. Barton.
each of the two deeds last named being
for the consideration of $500.
In their answer the defendants in the
first place. interpose the alleged foreclos-
ure as an insuperable obstacle 20 the
maintenance of the plaintiffs bill to re-
deem the property from the mortgage;
and secondly. if BY reason of the fact that
the certificate of entry was recorded in
Waldo county instead of Hancock. or for
any other cause, the court should hold The
proceedings for foreclosure invalid and
Intellectual for the purpose. the defendants
n tho nIajDtiff'S right redeem
is conclusively barred by the adverse pos
session of the premises on the part of the
defendants and their predecessors in title
not onl! for more than 20 years. but for
more than 40 wears prior to the date of the
plaintiffs bill to redeem.
Subsequently the defendants also filed
mer Judgment in favor of the defendant
Sophia NJ Barton in real action brought
by this plaintiff to recover possession of
the same premises.
While this court has held that no ques
ton of lacheS arises under a bill to re-
deem a mortgage; that the duration OF
the mortgagor's right to redeem is clearly
defined by law. and one the court cannot
abridge or enlarge by a single day: and
that the right continues indefinitely, I'M
til barred by some process of foreclosure,
or by 20 years adverse possession of the
land by the moregagee. yet it is undoubt-
edly a settled rule in this States that if
the mortgage is permitted to take and
hold possession of the mortsaged prem
ises for 20 years after the debt. becomes
payable to the exclusion of the mort
eagor and in denial of his rights. without
accounting and without admitting that
he holds only as mortgage, the mortga
gor's right of redemption is barred and
the mortgages title becomes absolute
1t is obviously the adverse character of
the possession. however. and not the
mere fact of possession by the mortgage
for 20 years that will operate to convert
the mortgage into an absolute one. Tweu-
ty years possession by the mortgage
after condition broken may raise a IRE
sumption of foreclosure but it is by; no
means conclusive 1t is the nature of the
occupancy which determines
the question of the mortgagor's right to
redeem To constitute a bar to such right
it must appear that the mortgagor's pos
session is unequivocally adverse to the