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that the last-named loans, amounting to $450,, dates between said October 3d and the 3d should be secured by the aforesaid mortgage day of October, 1903, payments had been given by the defendant Morin to the plaintiff made on said note amounting to the sum of October 3, 1899. At the time this agreement was made the plaintiff had actual notice of the $450 as witnesses by the indorsements on second mortgage to Marshall. March 5, 1906, said note to be applied to the principal sum the defendant Morin was adjudicated a bank- of said note; that all interest had been paid rupt, and thereafterwards the defendant Letourneau was duly appointed and qualified as trus- up to the last-named date; that on November tee in bankruptcy of the defendant Morin's es- 9, 1903, said Morin gave to Peter Marshall, tate, and in his capacity as trustee be appeared of Waterville, in said county a mortgage on in defense in the plaintiff's action to represent the interest of the creditors of the defendant same real estate to secure a note for the Morin. The mortgage given by the defendant sum of $800, still unpaid, and in said mort. Morin to the plaintiff October 3, 1899, to secure gage said Morin reserved and excepted from the payment of the aforesaid note of $900 con

the covenant against incumbrances a certain tained no stipulation respecting any other debt or further advances, and it did not appear that mortgage given to John W. Hayhurst'on at the time the mortgage was given there was which there is now due the sum of $450°; any oral agreement in regard to such advances that said Marshall has begun foreclosure

#eld: (1) That while it is competent, in answer to a bill in equity to redeem a mortgage, proceedings on his said mortgage; that on for the defendant to show that it would be in October 3, 1905, and on November 6, 1903, equitable to allow the plaintiff to do so upon the said Morin borrowed of said Haghurst the payment of the amount apparently due thereon, when it appears that further advances have in sum of $450 and gave notes therefor, signed fact been made in pursuance, and upon the by himself and his wife, Alice Morin; that faith, of a valid oral agreement that the mort- an agreement was made, a few days after gage should remain as security for such further said last-named date, that said sum should advances, yet such oral agreement cannot be set be secured by the mortgage first given by up against a subsequent mortgagee or attaching creditor, nor can it be invoked against the mort said Morin; that at the time of said agreegagor himself or his assignee in an action at law ment said Marshall's mortgage was not brought by the mortgagee to foreclose the mort- recorded; that interest on all sums due gage.

(2) That there was no new or valuable consid- from the said Morin to the said Hayhurst eration for the oral agreement made "a few was paid to October 3, 1905; that said Haydays" after the new loans of October 3, and hurst had notice of the mortgage that was November 6, 1903, respectively, were made. That such advances did not appear to have been given by said Morin to said Marshall; that made upon the faith of such oral agreement. said Morin was adjudicated a bankrupt.on And that such oral agreement, entered into March 5, 1906, and J. A. Letourneau qualified without any new consideration, and not in pur

as trustee of his estate March 25, 1907, and suance of any understanding between the parties before the advances were made, was not a

succeeded a former trustee who had resigned, valid agreement, and cannot be enforced against and he now comes into this cause to be heard the mortgagor himself in any proceeding at law in his said capacity; that said Hayhurst or in equity. (3) That the plaintiff was only entitled to

never had but one mortgage on said real esjudgment as of mortgage for $450, with interest tate." from October 3, 1905.

Argued before EMERY, C. J., and WHITE[Ed. Note.-For other cases, see Mortgages, HOUSE, SAVAGE, SPEAR, CORNISH, and Cent. Dig. § 238; Dec. Dig. $ 121.*]

KING, JJ. (Official.)

F. W. Clair, for plaintiff. Letourneau & Report from Supreme Judicial Court, Ken- Matthieu, for defendants. nebec County, at Law. Writ of entry to foreclose a real estate

WHITEHOUSE, J. This is a writ of enmortgage, by John W. Hayburst against try brought for the purpose of foreclosing Michael J. Morin, and J. A. Letourneau as

a mortgage of real estate given by the detrustee in bankruptcy. Case reported to the

fendant Jorin to the plaintiff October 3, law court. Judgment for plaintiff.

1899, to secure the payment of $900, for Writ of entry, brought for the purpose of which Morin gave a note, signed by himself foreclosing a real estate mortgage, given by and his wife, Alice Morin, payable at the rate the defendant Morin to the plaintiff to secure of $200 each year. The case is reported to the payment of $900. When this cause came the law court upon an agreed statement of on for hearing at nisi prius, an agreed state. facts. for the purpose of determining the ment of facts was filed and the case was amount for which the conditional judgment then reported to the law court for that court shall be entered. to render such judgment "as the law and The facts disclosed by the agreed statethe facts require.” The agreed statement of ment are as follows: facts is 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 $430. November 9, 1903, the ed in the plaintiff's writ; that on different defendant Morin gave to one Marshall a

The pay:

second mortgage to secure the payment of October 3, 1899, to secure a particular debt a note for $800, with the following provi- evidenced by a note of $900. There is no sion in the covenant against incumbrances: stipulation in the mortgage respecting any "Reserving and excepting a certain mortgage other debt or further advances, and it is not given to John W. Hayhurst on which there claimed that at the time the mortgage was is now due the sum of $450”—and it is given there was any oral agreement in reagreed that Hayhurst never had but one gard to such debt or advances. inortgage on the premises. The note for ments of principal and interest made on the $800 secured by Marshall's mortgage re- note between 1899 and 1903, reduced the mains unpaid, and proceedings for a fore- amount due on the note to $450. Those pay. closure of that mortgage are pending.

ments were all indorsed on the note, and it October 3, 1905, the defendant Morin ob- is not in controversy that the effect of these tained from the plaintiff a loan of $200, payments was to extinguish that portion of and gave him a note therefor, signed by hiin- | the particular debt specified in the mortgage. self and wife, payable on demand; and Thereupon, on the 9th of November followNovember 6, 1905, obtained from the plaining, the defendant Morin borrowed $800 of tiff another loan of $250, for which he gave one Marshall, and gave him as security therea note, signed by himself and wife, pay- for a second mortgage on the same property able in one year. A few days after the last- expressly referring to the plaintiff's mortgage mentioned loan was obtained, an agreement as one upon which there was then due the was made between the parties that these sum of $450. Two years later Morin negoloans of October 3 and November 6, 1905, tiates a new loan with the plaintiff for $200, amounting to $450, should be secured by the giving a note signed by himself and wife, mortgage in question of October 3, 1899, first payable on demand. It is not suggested that given by Morin to the plaintiff. At the time any allusion whatever was made to the of this agreement the mortgage of November mortgage at that time, or that there was 9, 1903, from defendant Morin to Marshall then any understanding that this loan should had not been recorded, but the plaintiff then be secured by the mortgage. A month later, had actual notice of that mortgage.

on November 6, 1905, Morin obtained from March 5, 1906, the defendant was adjudi- the plaintiff another loan of $250, giving his cated a bankrupt, and on the 25th of the note therefor as before; and it was not sugsame month, J. A. Letourneau was duly gested that there was any agreement or underqualified as trustee in bankruptcy of Morin's standing at that time that either of these estate, and in that capacity he appeared last-named notes should be secured by the in de ense of this cause to represent the plaintiff's mortgage. But in the words of the interests of the creditors.

agreed statement "an agreement was made a The plaintiff claims that he is entitled to few days after said last-named date (No. a conditional judgment for a total principal vember 6, 1905] that said sum ($450) should of $900, with interest on the first two notes be secured by the mortgage first given," from October 3, 1905, and on the last two although the plaintiff then had knowledge notes from November 6, 1905, to which dates, of the second mortgage to Marshall. respectively, the interest on the notes specified The plaintiff is entitled to have his mort. appears to have been paid. But since a judg-gage upheld and enforced according to the ment for this amount would include the terms and stipulations of the contract there$450 represented by the two loans of October in specified, which the mortgage was original. 3 and November 6, 1905, made by the plain-ly designed to secure, and it is unnecessary tiff after he bad notice of the second mort. to cite the authorities, which are numerous, gage given by Morin to Marshall two years in support of the proposition that no mere before, it is conceded by the plaintiff's at- change in the form of the indebtedness, withtorney that the lien created by the Marshall out actual payment of the debt, is deemed mortgage must have priority over the lien sufficient to entitle the mortgagor to a disclaimed to have been created by the oral charge or release. The reasoning in all the agreement that the last two notes should be cases by which this familiar doctrine is essecured by the plaintiff's mortgage, and he tablished proceeds upon the assumption that: consents that, if a' conditional judgment is there has never been an actual payment of rendered for the entire $900, that part of it the indebtedness secured by the mortgage. represented by the last two notes above But it is equally well established that, after specified may, if possible, be made subject an actual extinguishment of the debt, the to the prior lien of Marshall as second mort- mortgage cannot be revived by an oral agreegagee.

ment to keep it in force, to secure any new The defendant trustee in bankruptcy con- and independent debt which could be made tends that the judgment should be for $450, the foundation of a conditional judgment, in and interest froin October 3, 1905, that being an action at law by the mortgagee against the balance due on the original note of $900 the mortgagor to foreclose the mortgage. after deducting the payments of principal Joslyn v. Wyman, 5 Allen (Mass.) 62; Stone and interest made thereon.

v. Lane, 10 Allen (Mass.) 74; Upton v. NaIt has been seen that the mortgage in tional 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 It is true that, if the mortgagor for a new mortgage. For aught that appears they were consideration makes an oral agreement that made without any reference whatever to the the mortgage shall be continued in force as mortgage. There was no new or valuable security for a new loan, and advances have consideration for an oral agreement thus been made by the mortgagee upon the faith made, at a different time, and on a separate of it, a court of equity, in a bill brought by occasion, “a few days" after the advances the mortgagor to redeem, will refuse to ex- were made. An oral agreement, entered intend its aid to relieve the mortgagor from to without consideration under such circumsuch valid oral agreement, on the principle stances, and not made in pursuance of any that he who seeks equity must do equity. In understanding between the parties before the Upton v. National Bank, 120 Mass. 153, the advances were made, is not a valid agree court say: "While an indebtedness other ment, and cannot be enforced against the than that for which the mortgage is given mortgagor himself in any proceeding at law cannot legally be attached to such mortgage, or in equity. yet it is competent, in answer to a bill in It is accordingly the opinion of the court equity to redeem a mortgage, for the defend that the plaintiff is only entitled to ant to show that it would be inequitable to Judgment as of mortgage for $450, with allow the plaintiff to do so upon the payment interest from October 3, 1905. of the amount apparently due thereon, inas much as the defendant had, for valuable consideration, orally agreed that it should not

(104 Me. 203) thus be discharged, but should remain as BRADLEY LAND & LUMBER CO. et al. v. security for other debts.” The same equita

EASTERN MEG. CO. ble doctrine prevailed in Joslyn v. Wyman, (Supreme Judicial Court of Maine. July 10, 5 Allen (Mass.) 62, and Stone V. Lane, 10

1908.) Allen (Mass.) 74. But in all of these cases 1. TROVER AND CONVERSION (8 42*) - Dan.

AGES-LIMITED INTEREST the rule of law was clearly stated that such

PLAINTIFF

LOGGING PERMIT_TITLE TO Logs RETAINED an oral agreement could not be set up against BY OWNER OF LAND-Such OWNER CANNOT a subsequent mortgagee or attaching credit- RECOVER FULL VALUE IN TROVER, WHEN. or; nor could it be invoked against the mort. right or interest in the property, or is account.

It is only when the plaintiff has the sole gagor hinself, or his assignee, in an action at able therefor to some third party, that he can relaw brought by the mortgagee to foreclose cover the full value in an action of trover. the mortgage. See, also, 27 Cyc. 1179, and Whenever he would have to account to the Balch v. Chaffer, 73 Conn. 318, 47 Atl. 327, defendant or the defendant's vendor for the

amount of the latter's interest in the property, 84 Am. St. Rep. 155.

he can recover only the value of his own inIn the case at bar, as already stated, the terest. plaintiff concedes that this oral agreement be- [Ed. Note. For other cases, see Trover and tween himself and Morin respecting the loans Conversion, Cent. Dig. & 248; Dec. Dig. $ 42.* ] of October 3, and November 6, 1905, cannot 2. LOGS AND LOGGING (835*) — DAMAGES —

LIMITED INTEREST OF PLAINTIFF. be set up against the second mortgage to

When, by the terms of a logging "permit,". Marshall, of which the plaintiff bad actual the landowner retains the title to the logs until ' notice. The plaintiff admits that, as to the the operator shall have fully performed all his $450 represented by those new notes, his obligations, but leaves to him the right to any mortgage must be held subject to the prior ing all sums due from the operator to the land

balance of the proceeds of the logs after deductlien of the Marshall mortgage.

owner under the permit, the latter in an action But the plaintiff insists that this oral agree of trover for the logs against the operator or his ment could be set up against the mortgagor vendee can recover only the amount so due him.

[Ed. Note.-For other cases, see Logs and himself, the defendant Morin, and since the

Logging, Dec. Dig. $ 35.*] rights of the defendant Letourneau, the trus

(Official.) tee in bankruptcy, cannot be superior to those of Morin, the oral agreement must also be Exceptions from Supreme Judicial Court, enforced against the trustee. It has been Penobscot County. shown, however, by the authorities above cit- Trover by the Bradley Land & Lumber

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Company and others against the Eastern | penses, commissions, and all sums which Manufacturing Company. Verdict for plain. may then be due or may become due from tiffs, and defendant excepts. Exceptions any cause whatever as herein expressed, the sustained.

balance, if any there be, they shall pay over Trover brought by the plaintiffs against

on demand to said grantee after a reasonable the defendant to recover the value of 9,555 time for ascertaining and liquidating all spruce logs, containing 869,470 board feet, amounts due or which may become due

either as stumpage or damages.” alleged to have been converted by the defendant. These logs were cut by

Under this permit Mullen entered on the Charles W. Mullen on the plaintiffs' land, drove to market a quantity of logs and lum

land each year, and cut and hauled and under a written permit, and by him were sold to the defendant. The defendant sea

ber. A part of these, viz., 9,555 spruce logs,

he sold to the defendant. sonably notified Mullen to come in and de

The plaintiffs fend the action, and he appeared and as

afterward, claiming that the stumpage had sumed the defense.

not been paid and other stipulations of the “The defendant pleaded the general issue and a brief statement permit had not been performed, made a desetting up the title to the logs and lumber in mand on the defendant for the logs, which Charles W. Mullen,” and also stated therein not being complied with they brought this certain alleged facts in reduction of dam- action to trover against the defendant for

conversion of the logs. Upon notice from ages. Tried at the October term, 1906, Supreme sumed the defense of the action.

the defendant, Mullen appeared and Judicial Court, Penobscot county. At the conclusion of the testimony, the presiding

At the trial the principal, if not the only, justice directed the jury to return a verdict controversy, was over the matter of the burnt for the plaintiff for the value of the logs at timber named in the permit. The plaintiffs the time of the conversion, and interest from claimed that a large amount of burnt timthe date of the writ, amounting in all to ber which Mullen was bound by the terms of $14,656.33. The defendant excepted to this the permit to cut and pay for, or bound to ruling, and also to certain rulings during the pay for if left uncut, was left uncut and not trial, whereby certain evidence offered by paid for. Mullen claimed that he had not the defendant was excluded.

left uncut any burnt timber within the terms The case is stated in the opinion.

of the permit. The defendant claimed and Argued before EMERY, C. J., and WHITE- offered evidence to show that the full amount HOUSE, CORNISH, and KING, JJ.

due the plaintiffs from Mullen for all damage

of any kind due them under the permit was F. H. Appleton and Hugh R. Chaplin, for $5,166.55, and asked to have the question of plaintiffs. P. H. Gillin and J. F. Gould, for those damages determined in this action of defendant.

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 $14,636.33. To these rulings the defendant timber land of the plaintiffs and cut and re- excepted. move therefrom and drive to market cer- To sustain these rulings we would need to tain kinds of timber, and pay therefor a hold that the transaction between the plainfixed stumpage price per M. In the permit tiffs and Mullen as evidenced by the written were various stipulations. Mullen was to permit was only a conditional sale to Mullen cut all the burnt timber on the land during of the logs and lumber cut, hauled, and drivthe lifetime of the permit, and all the burnt en to market by him under the permit, and timber left uncut was to be scaled and was that, by his failure to perform in full by the to be paid for by Mullen according to the time fixed any of the conditions of the sale, terms of the permit. The stumpage was to he forfeited and lost all interests and rights be paid in full by July 1st of each year, in the logs and lumber, and the plaintiffs and all the other requirements of Mullen in could take them or recover the full value of the permit were to be performed by him, them free from any obligations to Mullen. and it was further stipulated that all the The decisions in Brown v. Haynes, 52 Me. logs and timber cut on the land should re- 578, Hawkins v. Hersey, 86 Me. 394, 30 Atl. main the property of the plaintiffs until 14, and in other cases similar to them were stumpage bills were paid "and all other mat- made on that ground. ters 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

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 C. 84, § 17; and whether legal or equitablo right in the logs and lumber he had cut, haul- the question of the amount or value of the ed, and driven to market, even though he plaintiff's interest in the property, so far as did not seasonably and fully perform some now appears, can be fully determined in this one of the terms of the contract. He retain action. Ganong v. Green, 71 Mich. 7, 38 N. ed the right that they should be sold or ac-W. 661. If difficulties develop requiring it, counted for as sold, and that, after deduction an auditor can be appointed, or the case held of all sums, the plaintiffs were entitled to until other necessary proceedings are had. under the agreement the balance should be It may be that the whole amount due the paid to him. There were no logs nor lumber plaintiffs from Mullen under all the terms of when the agreement was made. There were the permit would exceed the full value of the only trees annexed to the plaintiffs' realty. logs converted by the defendant. In such It was the purpose to have these made into case the plaintiffs would be entitled to the logs and lumber and put in the market to the full value, but the defendant has the right to mutual profit of the parties. The spirit, the be heard upon that question and have it de real nature of their agreement, was that termined before being condemned. Mullen should sever the trees from the land, It follows that the ruling directing a verconvert them into logs and other lumber, and dict for the full value of the logs and exget them to market at his own expense, thus cluding evidence as to the amount due the greatly adding to their value, and that the plaintiffs was erroneous, and that the excepplaintiffs should retain the title simply as se- tions to that ruling must be sustained. This curity for the payment of what might be or makes it unnecessary to consider the other become due them under the agreement. That exceptions. amount, whatever it might be, with the right Exceptions sustained. to enforce payment of it, was the full extent New trial ordered. 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

(104 Me. 187) all they are entitled to recover, since that

CHAPLIN V. GERALD et al. amount would fully indemnify them for the (Supreme Judicial Court of Maine. June 29, conversion. It is only when the plaintiff

1908.) has the sole interest or right in the property, 1. CONTRACTS ($ 175*)-CONSTRUCTION-Evi. or is accountable therefor to some third par

When a plaintiff attempts to establish an ty, that he can recover the full value in an oral agreement as collateral to a written one, action of trover. Whenever he would have the scales of proof at the start are materially to account to the defendant for the amount borne down against the plaintiff by the preof the latter's interest in the property, he whole agreement, and the plaintiff should be re

sumption that the written contract contains the can only recover the value of his own inter- quired to adduce clear, strong, and convincing est. Chamberlain v. Shaw, 18 Pick. (Mass.) evidence to outweigh such presumption; other278, 29 Am. Dec. 586; Fowler v. Gilman, 13 wise the stability of written contracts will be

impaired, and resulting confidence therein de Metc. (Mass.) 267; White v. Allen, 133 Mass. stroyed. 423; Spoor v. Holland, 8 Wend. (N. Y.) 445, 24 [Ed. Note.--For other cases, see Contracts, Am. Dec. 37 ; Warner v. Vallily, 13 R. I. 487; Dec. Dig. § 175.* ] Ganong v. Green, 71 Mich. 7, 38 N. W. 661. 2. RELEASE (8 57*) - EVIDENCE-SUFFICIENCY. "If the plaintiff having but a limited title,

July 23, 1902, the plaintiff lost his right brings his action against one having the re

foot in a collision between two cars on the de

fendants' street railway, one of which he was maining interest, or against one claiming un-operating as a motorman. He did not bring der such residuary owner, he can then re any action to recover damages for his injuries. cover only according to his interest.” Suth. Also, the defendants denied all liability in the

matter. February 9, 1903, the plaintiff received erland on Damages (2d Ed.) $ 1136, and cases

and accepted from the defendants the sum of cited. See, also, Warren v. Kelley, 80 Me. $1,000 and at the same time an instrument un. 512, 15 Atl. 49. This rule of damages in such der seal and of the following tenor was executed cases is equitable and reasonable, since it in duplicate: “In consideration of the sum of

one thousand dollars ($1,000) to me in hand saves the parties the expense, and the court paid, the receipt whereof I herewith acknowlthe burden, of a second suit to compel an ac-edge, I, John Chaplin, of Topsham, Maine, for counting and refunding in case a plaintiff myself, my heirs and assigns, do hereby release should be recalcitrant, and also since under it S. A. Nye, Henry M. Soule and Cyrus W. Da.

Amos F. Gerald, E. J. Lawrence, A. B. Page, the defendant would run no risk of the plain- vis, associates, and also the Portland & Brunstiff's insolvency. In this case at bar we find wick Street Railway, from any claim by me of no evidence of facts or conditions requiring any name or nature in the past or at the pres

ent time, or that may arise in the future, by a separate suit for the adjustment of the reason of the accident occurring during the amount due the plaintiffs from Mullen under summer of 1902, at or near Mallett's gulley, so the permit, since he has come in and assumed called, in Freeport, Maine, in which accident I the defense. So far as the defense in reduction sustained the loss of my right foot; and in con

sideration of the above payment, Amos F. Ger. of damages is equitable only, it was pleaded, ald, for the associates, Cyrus W. Davis, Treas

DENCE.

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