Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-12-14

NdruS TIE dcciQ6nt. w e are also or the
opinion that the damages assessed by
the jury were not excessive.
Motion overruled.
Reed Dec. 18th. 1904.
Knox County.
Luther o. Poland VS.. Alwilda S. Davis
| ct al. Alwilda S. Davis VS.. Luther O.
Poland. Rescript by Wiswell, c. J.
Ordinarily. in the case Of mort
gage given to secure the payment of
money, the burden of proving the pay
ment of the mortgage Indebtedness, is
| on the mortgagor. and in an action to
recover possession by the mortgage in
mortgage given for his support.
where there is no agreement to the
contrary, and no clause from which
such an agreement may be fairly in.
| ferred, the mortgage is entitled to pos
session of the mortgaged premises and
to maintain real action to recover
such possession whether there has been
| a, breach of the condition of the mort
gage or not.
But it is otherwise in the case of a
mortgage given for the support of the
mortgage where it is provided in the
mortgage that the support shall be fur
nished the mortgage upon the prem
| ises described in the mortgage. In
such case. the implication is clear that
it was the intention of the parties that
the mOrtgagOr should retain possession
| of the premises until a breach of the
condition. because possession by him is
absolutely necessary in order to enable
him to perform the condition of the
mortgage. In such a case, the burden
of proving that there has been a
breach of the condition of the mortgage
is upon the mortgage, or upon an as
signee, who seeks to recover possession
| Of the premises.
These two cases were tried together.
AS to the real action: One Edward
Grouse conveyed the demanded premis-
es to his daughter, one of the defend
ants in the real action: she, and her
husband, the other defendant. gave a
mortgage back to Grouse, conditioned
for his support during his natural life
"in the house this day decided to said
Alwilda. and at his death give him
suitable burial" A few months prior
to his death the mortgage left the de-
PENDANTS house and went to live with
his son, in another town in the same
county. where he died in the spring of
1901. The case contained no evidence
of any breach of the condition of the
mortgage up to the time of the death Of
the MORTGAGE. Upon the petition of a
person claiming to be a creditor. ali
administrator was appointed upon the
estate of Grouse who subsequently at
tempted to foreclose the mortgage by
publication. After the expiration OF
the period allowed for redemption the
administrator, having obtained license
therefor from the Probate Court. con-
veyed the premises to the plaintiff in
the real action. The plaintiff. in addi-
| ton to any title that he may have had
in the premises by reason Of the mort
gage. appears to have been the owner
of one undivided third of the premises
by virtue of a deed from the widow Of
Grouse. who did not join in the con-
| veyance by Grouse to his daughter. The
| only evidence that had any tendency to
show a breach of the condition of the
| mortgage was to the effect that after
| the death of the MORTGAGE. his son,
with whom he was living at the time of
his death. notified the martgagors of
| this fact and requested them to have
grave prepared at their expense, and
they refused to do SO. Upon these
facts the presiding justice ordered a
verdict for the plaintiff for the whole
| Of the demanded premises.
Held: that the evidence was not suffi-
eient to warrant the direction of a ver-
dict; that it does not necessarily follow
from this mere request and refusal,
| without other facts and circumstances
appearing that there was unquestiona-
bly, a breach of the condition Of the
mortgage. The mortgagors were not
obliged to go to the town where the
mortgage died and provide for his bu-
rial there. nor to take the remains from
there to their own town, and what was
desired in this respect by the son who
made the request. does not appear.
They were not required to perform
this duty in any particular place. Their
only duty, under any circumstances.
was to give him a suitable burial, this
might have been upon the premises. or
in a cemetery. or it might have been
entirely suitable and proper to have
placed the remains in a receiving tomb,
until. in some more favorable season of
the year. they could select a suitable
place and have a grave prepared for
the remains of the deceased.
In the action of trespass quare clau-
sum, the trial proceeded upon the theo-
ry that the defendant in that action
was the owner Of the whole Of the
premises but that the plaintiff was a
tenant and that under the circum-
stances Of the case, she could maintain
an action of trespass against the
landlord for such acts as were commit
ted by him. The assumption that the
defendant. in the real action. was the
owner Of the whole Of the locus was ere
roneous 80 far, at least. az the facts
now appear. and In view Of our cone
clusion in the real action. The plain.
tiff's exceptions in that action must
therefore be sustained.
As to whether or not the acts CONF
planned Of al t-espasses were such as
to authorize the maintenance of an ac-t
ton OF trespass quare clausum. by one
co-tenant against another, need not
now be decided.
Defandant's exceptions in the real