Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-05-26
DECISIONS FROM
THELAW COURT
.Rescripts Received in the Ken
nebec County Cases Of Frank
E. Jackson vs.. Wilbur A..
Maxwell and Marshall G. Cole
VS.. Lillian Cole.


The following rescripts have been
received from the law court In the
Kennebec county casses Of Frank e.
s6sxson VS.. Wilbur A. Maxwell and
fI&1rshall G. Cole VS.. Lillian Cole.
kennebee County.
Frank Z. jackson VS.. Wilbur A.
Maxwell Opinion. Spear, J.
The undisputed facts in this case
are as follows: In 1889 the plaintiff
became the owner OF an orchard in
the town of Monmouth, which has
become the subject of the present con-
troversy. 1t would appear from the
8evidence that this property was. all
along, until it was paid, subject to
mortgage to DR.. Marston. In 1892
the plaintiff by warmly deed con-
veyed the orchard. subject to the
Marston mortgage, to B. T. Tolman
of Waltham, Mass. At the time, the
plaintiff was owing Tolman $4,000 and
later had more money Of him. AL
though informed by Jackson, as
Ehe says, that the Marston mortgage
was all paid up" Tolman found upon
Investigation that he had only two
] mortgage he paid s121O. The equity
expired in his hands and he acquired
an absolute title. free from any agree
ment, whatever, with Jackson.
The case also shows that Tolman,
! on May "a. 1895. gave to Wilbur A. Max
well, the defendant, a quit claim deed,
with covenants Of warranty against
all membranes made or suffered by
him and against the lawful claims and
demands of all persons, claiming, by,
h through or under him. The plaintiff
so far as the papers show was an en-
i tire stranger to this transaction. The
bill alleges that Tolman held the war
4 ranty deed as a mortgage. and the
title by foreclosure in trust, for him.
While under the evidence this con-
Etent!on could not be conceded. it is
Eimmaterial whether it be so or not.
a, holding absolute title, may convey
Eto =, by absolute deed. and make the
deed an equitable mortgage in favor
Eof c. Whether this can be done Is a
matter Of proof. not Of law.
The plaintiff further alleges that the
defendant agreed to advance the
Esmount due from the plaintiff to Toll
Imam and take a deed from Tolman,
I which should purport to convey a fee
a and be absolute on its face but which
Vim fact should be a mortgage on Sc
&curity" for the money advanced.
1t is incumbent upon the plaintiff to
Iprove by the degree Of evidence re-
Quired in this class Of cases that not
only he, himself. understood this tran
saction TO be mortgage, but that
Maxwell. as well. understood 1t in the
same way. stinchf1eld v. Milliken, II
Maine. p 517. "The criterion Is the
antention of the parties"
We may perhaps first properly allude
to the degree of evidence required to
eo2Eert a deed into a mortgage. 1t is
/ hf should be very high. Otherwise
mo man would be safe in taking a
deed Of property, especially with pros
Jpects Of rapid increase in value. When
Mt had doubled or trebled, 1t would be
lonly necessary for the grantor to bring
witnesses to testify to an agreement
,tthat the deed was regarded as ar
7equitable mortgage to enable him, upor
l4payment Of the purchase price and in
tterest, to redeem. So dangerous is the
4doctrine Of converting an absolute
tdeed into a mortgage that some state:
d deny the application Of the doctrine
d at all, except upon proof of fraud, acct
/ lent or mistake. This Is the rule IL
Connecticut, Florida. Georgia. Ken
lucky. North Carolina and Rhode Is
1land. II New Hampshire and Penn
1sylvanix such, agreements have NJ
korce NH3eSa INSERTED in the deed. II
livery sother (14e the rule gives ex.
res6J0&~ 20 theShigh degree of evidence
4slfe6 to convert deed absolute
ITO hortgage, by the use Of such
ms ask'clear and certain" "conclu
Fe," 'Unequivocal." The great course
authority holds that the plaintiff
lust prove his case, "by force Of evil
yence sufficient to command the unhes.
fitating assent Of every reasonabl,
mind." The evidence must be Of sucl
weight and character as would justif,
a court in reforming a written instru.
ment. which upon the ground Of mis-
Ike did not set forth the intention o.
~ parties thereto. Rowland v. Blake
~. S. 624. The degree Of evidenc,
equired to reform a written instru
nent is found In the cases collated IL
liberty V. Haines, 103 Maine, 1872
these citations all agree in demanding
roof practically beyond a REASONABLE.
oubt.
Upon all the testimony in this cas-,
is very clear that the plaintiff ha.
JAILED to sustain the burden Of proc,
Ander the high standard required.
II Eating WHAT YnlI WANT