dates between said October 3d and the 3d day of October, 1903, payments had been made on said note amounting to the sum of $450 as witnesses by the indorsements on said note to be applied to the principal sum of said note; that all interest had been paid up to the last-named date; that on November 9, 1903, said Morin gave to Peter Marshall, of Waterville, in said county a mortgage on same real estate to secure a note for the sum of $800, still unpaid, and in said mortgage said Morin reserved and excepted from the covenant against incumbrances a certain mortgage given to John W. Hayhurst 'on which there is now due the sum of $450'; that said Marshall has begun foreclosure proceedings on his said mortgage; that on October 3, 1905, and on November 6, 1905, said Morin borrowed of said Hayhurst the sum of $450 and gave notes therefor, signed by himself and his wife, Alice Morin; that an agreement was made, a few days after said last-named date, that said sum should be secured by the mortgage first given by said Morin; that at the time of said agreement said Marshall's mortgage was not that the last-named loans, amounting to $450, should be secured by the aforesaid mortgage given by the defendant Morin to the plaintiff October 3, 1899. At the time this agreement was made the plaintiff had actual notice of the second mortgage to Marshall. March 5, 1906, the defendant Morin was adjudicated a bankrupt, and thereafterwards the defendant Letourneau was duly appointed and qualified as trustee in bankruptcy of the defendant Morin's estate, and in his capacity as trustee he appeared in defense in the plaintiff's action to represent the interest of the creditors of the defendant Morin. The mortgage given by the defendant Morin to the plaintiff October 3, 1899, to secure the payment of the aforesaid note of $900 contained no stipulation respecting any other debt or further advances, and it did not appear that at the time the mortgage was given there was any oral agreement in regard to such advances. Held: (1) That while it is competent, in answer to a bill in equity to redeem a mortgage, for the defendant to show that it would be inequitable to allow the plaintiff to do so upon the payment of the amount apparently due thereon, when it appears that further advances have in fact been made in pursuance, and upon the faith, of a valid oral agreement that the mortgage should remain as security for such further advances, yet such oral agreement cannot be set up against a subsequent mortgagee or attaching creditor, nor can it be invoked against the mortgagor himself or his assignee in an action at law brought by the mortgagee to foreclose the mort-recorded; that interest on all sums due gage. (2) That there was no new or valuable consideration for the oral agreement made "a few days" after the new loans of October 3, and November 6, 1903, respectively, were made. That such advances did not appear to have been made upon the faith of such oral agreement. And that such oral agreement, entered into without any new consideration, and not in pursuance of any understanding between the par ties before the advances were made, was not a valid agreement, and cannot be enforced against the mortgagor himself in any proceeding at law or in equity. (3) That the plaintiff was only entitled to judgment as of mortgage for $450, with interest from October 3, 1905. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 238; Dec. Dig. § 121.*] (Official.) Report from Supreme Judicial Court, Kennebec County, at Law. 1 Writ of entry to foreclose a real estate mortgage, by John W. Hayhurst against Michael J. Morin, and J. A. Letourneau as trustee in bankruptcy. Case reported to the law court. Judgment for plaintiff. Writ of entry, brought for the purpose of foreclosing a real estate mortgage, given by the defendant Morin to the plaintiff to secure the payment of $900. When this cause came on for hearing at nisi prius, an agreed statement of facts was filed and the case was then reported to the law court for that court to render such judgment "as the law and the facts require." The agreed statement of facts is as follows: from the said Morin to the said Hayhurst was paid to October 3, 1905; that said Hayhurst had notice of the mortgage that was given by said Morin to said Marshall; that said Morin was adjudicated a bankrupt on March 5, 1906, and J. A. Letourneau qualified as trustee of his estate March 25, 1907, and succeeded a former trustee who had resigned, and he now comes into this cause to be heard in his said capacity; that said Hayhurst never had but one mortgage on said real estate." Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ. F. W. Clair, for plaintiff. Letourneau & Matthieu, for defendants. WHITEHOUSE, J. This is a writ of en try brought for the purpose of foreclosing a mortgage of real estate given by the defendant Morin to the plaintiff October 3, 1899, to secure the payment of $900, for which Morin gave a note, signed by himself and his wife, Alice Morin, payable at the rate of $200 each year. The case is reported to the law court upon an agreed statement of facts. for the purpose of determining the amount for which the conditional judgment shall be entered. The facts disclosed by the agreed statement are as follows: By reason of the payments of principal "It is agreed that on October 3, 1899, said and interest made on the note prior to OcMorin borrowed of said Hayhurst the sum tober 3, 1903, the amount due at that date of $900, and gave a note secured by the mort- on the note which the mortgage was given gage in this cause, covering the land describ- to secure was $450. November 9, 1903, the ed in the plaintiff's writ; that on different defendant Morin gave to one Marshall a second mortgage to secure the payment of | October 3, 1899, to secure a particular debt a note for $800, with the following provision in the covenant against incumbrances: "Reserving and excepting a certain mortgage given to John W. Hayhurst on which there is now due the sum of $450"-and it is agreed that Hayhurst never had but one inortgage on the premises. The note for $800 secured by Marshall's mortgage remains unpaid, and proceedings for a foreclosure of that mortgage are pending. October 3, 1905, the defendant Morin obtained from the plaintiff a loan of $200, and gave him a note therefor, signed by hinself and wife, payable on demand; and November 6, 1905, obtained from the plaintiff another loan of $250, for which he gave a note, signed by himself and wife, payable in one year. A few days after the lastmentioned loan was obtained, an agreement was made between the parties that these loans of October 3 and November 6, 1905, amounting to $450, should be secured by the mortgage in question of October 3, 1899, first given by Morin to the plaintiff. At the time of this agreement the mortgage of November 9, 1903, from defendant Morin to Marshall had not been recorded, but the plaintiff then had actual notice of that mortgage. March 5, 1906, the defendant was adjudicated a bankrupt, and on the 25th of the same month, J. A. Letourneau was duly qualified as trustee in bankruptcy of Morin's estate, and in that capacity he appeared in defense of this cause to represent the interests of the creditors. evidenced by a note of $900. There is no The plaintiff claims that he is entitled to a conditional judgment for a total principal of $900, with interest on the first two notes from October 3, 1905, and on the last two notes from November 6, 1905, to which dates, respectively, the interest on the notes specified The plaintiff is entitled to have his mortappears to have been paid. But since a judg-gage upheld and enforced according to the ment for this amount would include the $450 represented by the two loans of October 3 and November 6, 1905, made by the plaintiff after he had notice of the second mortgage given by Morin to Marshall two years before, it is conceded by the plaintiff's attorney that the lien created by the Marshall mortgage must have priority over the lien claimed to have been created by the oral agreement that the last two notes should be secured by the plaintiff's mortgage, and he consents that, if a conditional judgment is rendered for the entire $900, that part of it represented by the last two notes above specified may, if possible, be made subject to the prior lien of Marshall as second mortgagee. The defendant trustee in bankruptcy contends that the judgment should be for $450, and interest from October 3, 1905, that being the balance due on the original note of $900 after deducting the payments of principal and interest made thereon. It has been seen that the mortgage in terms and stipulations of the contract therein specified, which the mortgage was originally designed to secure, and it is unnecessary to cite the authorities, which are numerous, in support of the proposition that no mere change in the form of the indebtedness, without actual payment of the debt, is deemed sufficient to entitle the mortgagor to a discharge or release. The reasoning in all the cases by which this familiar doctrine is established proceeds upon the assumption that' there has never been an actual payment of the indebtedness secured by the mortgage. But it is equally well established that, after an actual extinguishment of the debt, the mortgage cannot be revived by an oral agreement to keep it in force, to secure any new and independent debt which could be made the foundation of a conditional judgment, in an action at law by the mortgagee against the mortgagor to foreclose the mortgage. Joslyn v. Wyman, 5 Allen (Mass.) 62; Stone v. Lane, 10 Allen (Mass.) 74; Upton v. National Bank, 120 Mass. 153; Merrill v. Chase, the court say: "The demandant relies on a, ed that, in an action at law to foreclose the parol agreement between the parties that the mortgage, an oral agreement for a valuable mortgage should continue as a valid security consideration cannot be enforced for the purfor future advances. * But the dif- pose of attaching a new debt to that which ficulty of supporting such an agreement is the mortgage was originally given to secure. this: That a conveyance of land in mortgage But according to the facts stated in the agreeis a conveyance by a deed, defeasible on a ment of the parties, there is another insupercondition subsequent. By the performance of able objection to the plaintiff's claim. It is the condition the title of the mortgage is de- distinctly stated that the oral agreement was feated, and the mortgagor is in of his former made some days after the loans were obtainestate." See, also, Jones on Mortgages, vol. ed. It does not appear that the advances 1, § 357, and cases cited, and Cyc. vol. 27, p. | were made upon the faith of the oral agree 1073. ment that they should be secured by the mortgage. For aught that appears they were made without any reference whatever to the mortgage. There was no new or valuable consideration for an oral agreement thus made, at a different time, and on a separate occasion, "a few days" after the advances were made. An oral agreement, entered into without consideration under such circumstances, and not made in pursuance of any understanding between the parties before the advances were made, is not a valid agreement, and cannot be enforced against the mortgagor himself in any proceeding at law or in equity. It is true that, if the mortgagor for a new consideration makes an oral agreement that the mortgage shall be continued in force as security for a new loan, and advances have been made by the mortgagee upon the faith of it, a court of equity, in a bill brought by the mortgagor to redeem, will refuse to extend its aid to relieve the mortgagor from such valid oral agreement, on the principle that he who seeks equity must do equity. In Upton v. National Bank, 120 Mass. 153, the court say: "While an indebtedness other than that for which the mortgage is given cannot legally be attached to such mortgage, yet it is competent, in answer to a bill in equity to redeem a mortgage, for the defendant to show that it would be inequitable to allow the plaintiff to do so upon the payment of the amount apparently due thereon, inasmuch as the defendant had, for valuable consideration, orally agreed that it should not thus be discharged, but should remain as security for other debts." The same equitable doctrine prevailed in Joslyn v. Wyman, (Supreme Judicial Court of Maine. July 10, 1908.) It is accordingly the opinion of the court that the plaintiff is only entitled to Judgment as of mortgage for $450, with interest from October 3, 1905. (104 Me. 203) BRADLEY LAND & LUMBER CO. et al. v. EASTERN MFG. CO. 1. TROVER AND CONVERSION (§ 42*) — DAM- 5 Allen (Mass.) 62, and Stone v. Lane, 10 Allen (Mass.) 74. But in all of these cases the rule of law was clearly stated that such an oral agreement could not be set up against a subsequent mortgagee or attaching creditor; nor could it be invoked against the mort-right or interest in the property, or is accountgagor himself, or his assignee, in an action at law brought by the mortgagee to foreclose the mortgage. See, also, 27 Cyc. 1179, and Balch v. Chaffer, 73 Conn. 318, 47 Atl. 327, 84 Am. St. Rep. 155. In the case at bar, as already stated, the plaintiff concedes that this oral agreement between himself and Morin respecting the loans of October 3, and November 6, 1905, cannot be set up against the second mortgage to Marshall, of which the plaintiff had actual 'notice. The plaintiff admits that, as to the $450 represented by those new notes, his mortgage must be held subject to the prior lien of the Marshall mortgage. But the plaintiff insists that this oral agree ment could be set up against the mortgagor himself, the defendant Morin, and since the rights of the defendant Letourneau, the trustee in bankruptcy, cannot be superior to those of Morin, the oral agreement must also be enforced against the trustee. It has been shown, however, by the authorities above cit It is only when the plaintiff has the sole able therefor to some third party, that he can recover the full value in an action of trover. Whenever he would have to account to the defendant or the defendant's vendor for the amount of the latter's interest in the property, he can recover only the value of his own interest. [Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. § 248; Dec. Dig. § 42.*] 2. LOGS AND LOGGING (§ 35*) - DAMAGES – LIMITED INTEREST OF PLAINTIFF. When, by the terms of a logging "permit," the landowner retains the title to the logs until the operator shall have fully performed all his obligations, but leaves to him the right to any balance of the proceeds of the logs after deducting all sums due from the operator to the landowner under the permit, the latter in an action of trover for the logs against the operator or his vendee can recover only the amount so due him. [Ed. Note. For other cases, see Logs and Logging, Dec. Dig. § 35.*] (Official.) Exceptions from Supreme Judicial Court, Penobscot County. Trover by the Bradley Land & Lumber Company and others against the Eastern | penses, commissions, and all sums which Manufacturing Company. Verdict for plaintiffs, and defendant excepts. Exceptions sustained. Trover brought by the plaintiffs against the defendant to recover the value of 9,555 spruce logs, containing 869,470 board feet, alleged to have been converted by the defendant. These logs were cut by one Charles W. Mullen on the plaintiffs' land, under a written permit, and by him were sold to the defendant. The defendant seasonably notified Mullen to come in and defend the action, and he appeared and assumed the defense. "The defendant pleaded the general issue and a brief statement setting up the title to the logs and lumber in Charles W. Mullen," and also stated therein certain alleged facts in reduction of dam ages. Tried at the October term, 1906, Supreme Judicial Court, Penobscot county. At the conclusion of the testimony, the presiding justice directed the jury to return a verdict for the plaintiff for the value of the logs at the time of the conversion, and interest from the date of the writ, amounting in all to $14,656.33. The defendant excepted to this ruling, and also to certain rulings during the trial, whereby certain evidence offered by the defendant was excluded. The case is stated in the opinion. F. H. Appleton and Hugh R. Chaplin, for plaintiffs. P. H. Gillin and J. F. Gould, for defendant. may then be due or may become due from any cause whatever as herein expressed, the balance, if any there be, they shall pay over time for ascertaining and liquidating all on demand to said grantee after a reasonable amounts due or which may become due either as stumpage or damages." Under this permit Mullen entered on the drove to market a quantity of logs and lumland each year, and cut and hauled and ber. A part of these, viz., 9,555 spruce logs, The plaintiffs he sold to the defendant. afterward, claiming that the stumpage had not been paid and other stipulations of the permit had not been performed, made a demand on the defendant for the logs, which not being complied with they brought this action to trover against the defendant for conversion of the logs. Upon notice from the defendant, Mullen appeared and assumed the defense of the action. At the trial the principal, if not the only, controversy, was over the matter of the burnt timber named in the permit. The plaintiffs claimed that a large amount of burnt timher which Mullen was bound by the terms of the permit to cut and pay for, or bound to pay for if left uncut, was left uncut and not paid for. Mullen claimed that he had not left uncut any burnt timber within the terms of the permit. The defendant claimed and offered evidence to show that the full amount due the plaintiffs from Mullen for all damage of any kind due them under the permit was $5,166.55, and asked to have the question of those damages determined in this action of trover. The court excluded the evidence, and instructed the jury to return a verdict EMERY, C. J. The plaintiff landowners for the plaintiffs for the full value of the logs and Charles W. Mullen made an agreement at the time of the conversion, and interest in writing in the form known as a "permit," | from the date of the writ, which amount was by which Mullen was to enter upon certain $14,656.33. To these rulings the defendant timber land of the plaintiffs and cut and re-excepted. move therefrom and drive to market certain kinds of timber, and pay therefor a fixed stumpage price per M. In the permit were various stipulations. Mullen was to cut all the burnt timber on the land during the lifetime of the permit, and all the burnt timber left uncut was to be scaled and was to be paid for by Mullen according to the terms of the permit. The stumpage was to be paid in full by July 1st of each year, and all the other requirements of Mullen in the permit were to be performed by him, and it was further stipulated that all the logs and timber cut on the land should remain the property of the plaintiffs until stumpage bills were paid "and all other matters pertaining to this license were fully We think, however, that this case is not adjusted"; also that, if all these were not within the principle of those cases; that done within 10 days after July 1st, the plain- there is a wide difference between them. By tiffs might "take possession of and sell at the agreement in this case, if the plaintiffs either public or private sale for cash any or took the logs and lumber for nonperformance all of the lumber cut under this permit wher- of any condition in the agreement, they were ever situated and whether manufactured or to sell them or account for them as sold, and To sustain these rulings we would need to hold that the transaction between the plaintiffs and Mullen as evidenced by the written permit was only a conditional sale to Mullen of the logs and lumber cut, hauled, and driven to market by him under the permit, and that, by his failure to perform in full by the time fixed any of the conditions of the sale, he forfeited and lost all interests and rights in the logs and lumber, and the plaintiffs could take them or recover the full value of them free from any obligations to Mullen. The decisions in Brown v. Haynes, 52 Me. 578, Hawkins v. Hersey, 86 Me. 394, 30 Atl. 14, and in other cases similar to them were made on that ground. c. 84, § 17; and whether legal or equitable the question of the amount or value of the plaintiff's interest in the property, so far as now appears, can be fully determined in this action. Ganong v. Green, 71 Mich. 7, 38 N. W. 661. If difficulties develop requiring it, until other necessary proceedings are had. It follows that the ruling directing a verdict for the full value of the logs and excluding evidence as to the amount due the plaintiffs was erroneous, and that the excep tions to that ruling must be sustained. This makes it unnecessary to consider the other exceptions. Exceptions sustained. (104 Me. 187) CHAPLIN v. GERALD et al. (Supreme Judicial Court of Maine. June 29, 1908.) 1. CONTRACTS (§ 175*)-CONSTRUCTION-EVI ing all amounts due them under the agree | and is available in this action under Rev. St. ment. Mullen did not lose all interest and right in the logs and lumber he had cut, hauled, and driven to market, even though he did not seasonably and fully perform some one of the terms of the contract. He retained the right that they should be sold or accounted for as sold, and that, after deduction | an auditor can be appointed, or the case held of all sums, the plaintiffs were entitled to under the agreement the balance should be paid to him. There were no logs nor lumber when the agreement was made. There were only trees annexed to the plaintiffs' realty. It was the purpose to have these made into logs and lumber and put in the market to the mutual profit of the parties. The spirit, the real nature of their agreement, was that Mullen should sever the trees from the land, convert them into logs and other lumber, and get them to market at his own expense, thus greatly adding to their value, and that the plaintiffs should retain the title simply as security for the payment of what might be or become due them under the agreement. That amount, whatever it might be, with the right to enforce payment of it, was the full extent of their interest or property in the logs and lumber, and in an action of trover against Mullen, or his assignee or vendee, that is all they are entitled to recover, since that amount would fully indemnify them for the conversion. It is only when the plaintiff has the sole interest or right in the property, or is accountable therefor to some third party, that he can recover the full value in an action of trover. Whenever he would have to account to the defendant for the amount of the latter's interest in the property, he can only recover the value of his own interest. Chamberlain v. Shaw, 18 Pick. (Mass.) 278, 29 Am. Dec. 586; Fowler v. Gilman, 13 Metc. (Mass.) 267; White v. Allen, 133 Mass.stroyed. 423; Spoor v. Holland, 8 Wend. (N. Y.) 445, 24 Am. Dec. 37; Warner v. Vallily, 13 R. I. 487; Ganong v. Green, 71 Mich. 7, 38 N. W. 661. "If the plaintiff having but a limited title, brings his action against one having the remaining interest, or against one claiming under such residuary owner, he can then recover only according to his interest." Sutherland on Damages (2d Ed.) § 1136, and cases cited. See, also, Warren v. Kelley, 80 Me. 512, 15 Atl. 49. This rule of damages in such cases is equitable and reasonable, since it saves the parties the expense, and the court the burden, of a second suit to compel an accounting and refunding in case a plaintiff should be recalcitrant, and also since under it the defendant would run no risk of the plaintiff's insolvency. In this case at bar we find no evidence of facts or conditions requiring a separate suit for the adjustment of the amount due the plaintiffs from Mullen under the permit, since he has come in and assumed the defense. So far as the defense in reduction of damages is equitable only, it was pleaded, DENCE. When a plaintiff attempts to establish an oral agreement as collateral to a written one, the scales of proof at the start are materially borne down against the plaintiff by the prewhole agreement, and the plaintiff should be resumption that the written contract contains the quired to adduce clear, strong, and convincing evidence to outweigh such presumption; other wise the stability of written contracts will be impaired, and resulting confidence therein de [Ed. Note.--For other cases, see Contracts, Dec. Dig. § 175.*] 2. RELEASE (8 57*)-EVIDENCE-SUFFICIENCY. July 23, 1902, the plaintiff lost his right foot in a collision between two cars on the defendants' street railway, one of which he was operating as a motorman. He did not bring any action to recover damages for his injuries. Also, the defendants denied all liability in the matter. February 9, 1903, the plaintiff received and accepted from the defendants the sum of $1,000 and at the same time an instrument under seal and of the following tenor was executed in duplicate: "In consideration of the sum of one thousand dollars ($1,000) to me in hand paid, the receipt whereof I herewith acknowledge, I, John Chaplin, of Topsham, Maine, for myself, my heirs and assigns, do hereby release S. A. Nye, Henry M. Soule and Cyrus W. DaAmos F. Gerald, E. J. Lawrence, A. B. Page, vis, associates, and also the Portland & Brunswick Street Railway, from any claim by me of any name or nature in the past or at the pres ent time, or that may arise in the future, by reason of the accident occurring during the summer of 1902, at or near Mallett's gulley, so called, in Freeport, Maine, in which accident I sustained the loss of my right foot; and in consideration of the above payment, Amos F. Gerald, for the associates, Cyrus W. Davis, Treas |