Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-12-18

4. The location of the defect was
stated In the written notice. as, lat the
corner of Main and Hincks streets III
front of the dwelling house of Calvin
0. Page" The evidence was of a de-
feet on Maine street twenty or thirty
feet from Eincks street but in front Of
the dwelling house Of Calvin o. Page.
| The evidence sufficiently correspondent
with the notice.
S. A witness described the defect as
rock raised some eight inches above
the surface in the travelled part of Main
street about eighteen or twenty feet
from Hincks street. and testified that
he told the road commissioner of the
town, there was a rock there" This
was evidence from which the jury
could rightfully infer that the road
commissioner had notice of the defect
described.
6. In the plaintiffs declaration the
only allegation of notice was notice to
the municipal officers. The only
evidence of notice was notice to the
road commissioner. No objection of
variance was made at the trial how
ever, and hence it cannot avail the
defendant on his motion for new
trial, since an amendment to the
declaration can be allowed to conform
to the evidence.
!. 1t was assumed at the trial that
the written notice which was actually
given was given within the statutory
time, fourteen days. There was no
evidence that it was not. No objection
20 lack of positive evidence as to time
was made at the trial. The objection
comes too late after verdict.
Motion and exceptions overruled.
Reed. Dec 18th, 1903.
lincoln County. Orrin NJ Crummelt,
In Equity VS.. Arthur S. Littletield
Admr. Rescript by Whitehouse, =.
In bill in equity to redeem mort
age, the court has jurisdiction be-
wcen the parties to determine the
mount of tax liens outstanding on the
nortgagei promises growing out of the
original transaction. and which the
nortgagee stipulated to pay.
A. sold 10 y. the plaintiff by deed OF
warranty two parcels of land contain
ng the following stipulation in the
ranting clause; said grantee is to pay
- e"N>'' CAA 'AN BitSS ilIsl dGJCllDhat,
nd the grantor those now due on the
alance. 1t contained a covenant of
warranty against all membranes es-
ept said taxes. AS part of the same
transaction b. reconveyed the premises
a. by deed of mortgage to secure
500 of the purchase money
The plaintiff alleges that the cove
ant against membranes was broken
5hen the deed was delivered for the
eason that taxes legally assessed upon
he property by the town for many
ears, probably" amounting in the ag-
regate to $3.50, We're then and still are
lue and unpaid; that the town has adj
'ertised and sold the property for tax
IS and given tax deeds therefor; AMI
prior to the date of plaintiffs bill COM
nenced an action against him TO re-
over possession of the premises by
irtue of such tax deeds.
The plaintiff also AYERS that he ha.
aid $500 upon the principal of tho
nortgaSe and that the amount now due
not equal to the amount of the UNI
aid taxes; that q notice of FORECLOSURES
# the mortgage has been published
nd entered of record; that he de-
handed of AS, administrator, a true
lccouht of the sum due on the mort
;age, but that the defendant neglected
md refused to render such account:
hat he is ready and willing to pay the
AMOUNT which may be found 10 be
,quitably due; and that the estate of
The defendants intestate, A. has been
'endered insolvent
The prayer of the bill is for an ac-
ountirS OF the sum e1uitably due for
he principal and interest, the amount
ue for all taxes legally assessed upon
he property; that such incumbrance
nay be Offset against the mortgage
ebt and that b. the plaintiff be al
owed TO redeem upon the payment of
he balance. if any.
The defendant filed general demur-
'er to the bill. and also specially de-
hurried because the town is not made
| party to the bill.
The demurrer admits the facts stated
n the plaintiffs bill, but the question
If the validity and amount of the out
standing liens has not been judicially
determined. The estate of A. the de-
PENDANTS intestate. is insolvent and
may yield nothing whatever for the
payment of debts of the fourth class.
1t would be neither just nor reasona-
Die to compel B, the plaintiff. to pay
he entire amount due on the mortgage
iebt and depend solely upon the estate
IF A. TO" his protection against the out
standing tax titles.
Held: That equity unquestionably
entities the plaintiff to redeem his
property by paying the balance of the
mortgage debt after deducting the
amount of any valid tax liens upon it, |
But it is the opinion of the court |
hat the town and other claimants UNI
Ter tax deeds of the premises, If any, |
should be made parties defendant to !
this bill. According to the stipulation |
In the report. if the demurrer is sus-
tanned on the ground that such claim !
ants are not made parties. answer ana |
replication may be filed. ana the |
AMOUNT due fixed below without appeal !
with the right of amendment if neces-
sary."
The demurrer is sustained solely on
this ground. and the cause remandel |