Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-10
Cumberland County.

Francis T.. Powers VS.. Ida T.. Hambleton.
Rescript, Whitehouse, j.
This is Il real action to recover possess
sion of certain parcels of land compris-
ing the home farm of the parties in
Brunswick, and of a wood-lot situated on
Great Island in Harpswell.
In 1901 the plaintiff conveyed the de-
manded premises to the defendant, her
daughter, in consideration of a bond for
her support secured by mortgage to the
plaintiff of the same property. In 1906,
the plaintiff joined in written lease of
the homestead farm, not including the
woodlot, to George Y. Walker for the
term of five years at a rental of $3.50 per
year. This lease was under seal and was
in full force from it's date to the time of
the commencement of this action and to
the time of the trial, and by virtue of it,
Walker the lessee, was in interrupted
possession of the premises during the
same time.
The defendant pleaded the general is
sue with a brief statement alleging that
the plaintiff had barred herself from the
right of entry into and possession of the
premises by making and executing a
written lease thereof which was still in
force. The plaintiff demurred to the brief
statement contending that it set up mat
ter which should have been pleaded in
abatement. But the presiding justice
overruled the demurrer, SUBJECT to the
PLAINTIFFS exceptions, and this ruling
was manfestly correct. Under the gen.
eral issue in u real action the burden is
on the plaintiff to show the title he has
alleged in his writ, and it is obvious that
the defendant may rebut the plaintiffs
evidence by showing title in himself or
in another, or by showing that the plain
tiff has none. 1t is a familiar rule that
the plaintiff must recover If at all upon
the strength of his own title and not upon
the weakness of that of the defendant.
The plaintiff was mortgage of the de-
manded premises and upon proof of
breach of the condition of the mortgage,
she might have been entitled to Judgment
for possession of the premises, if she
had not joined in the execution of the
lease to Walker for the term of five
years. BY force of that instrument she
was clearly debarred from the right of
entry and possession of the premises,
with the exception of the rooms reserved
during the term of the lease.
The brief statement was superfluous 1t
added nothing to the general issue and
was in no way prejudicial.
The ruling of the presiding justice adj
hitting in evidence the lease to Walker
above described signed by the plaintiff
to which the defendants second exception
was taken, was also undoubtedly correct
for the reasons already suggested.
The parties lived on the home farm and
the defendant remained single until the
spring Of 1896 when she married Mr..
Hambleton who had become proprietor of
a hotel in Princeton Maine, and it was
then amicably arranged between the par
ties that they should all go to Princeton.
Preparatory to this change of residence
written agreement under seal was
signed by the parties and delivered to the
plaintiff, on the 18th day of February 1906.
In that agreement after reciting that
October 18th, 1901, the defendant had
given to the plaintiff a bond for her sup
port on the premises in Brunswick, it was
or lease the premises and remove there
from AT any tltlle NIlIout DelnS ClldTSeu
with any violation of the bond; provided
that the defendant should support and
maintain the plaintiff "at some other
suitable and convenient home within the
State of Maine Although the plaintiff
seeks to give the impression that she was
over-persuaded by her daughter to 60 to
Princeton, she appears to have cheerfully
acquiesced in the proposition and admits
that she told her daughter she had
worked hard enough on the farm to go
to Princeton and retire. She further tes-
titles that as a further consideration for
signing this agreement to go to Prince
ton" the defendant agreed to give her and
did give her mortgage of all she had
on earth Thereupon, on the 18th of
March following, the lease of the farm in
Brunswick was executed and delivered to
Mr. Walker and the parties soon after
removed to Princeton.
But the lease to Walker did not COM
prise the wood-lot situated on Great
Island and hence the plaintiffs right to
the possession of that lot was not effected
by the lease AS to that parcel the action
could still be maintained by proof Of
breach of the condition of the mortgage
given to her by the defendant to secure
the bond for support. But the burden of
proving breach of the conditions of
such a mortgage is on the mortgage, and
unless a breach is shown, the mortgage
is not entitled to possession.
When the plaintiffs testimony is care
fully examined and considered in con-
nection. with all the evidence, the cir
cumstances and situation of the parties
and the conduct of the plaintiff from
the time she conveyed the homestead to
her daughter in consideration of the bond
for her support to the time of the trial,
it is the opinion Of the court that It fails