Phillips v. Leavitt

Appleton, C. J. On the 19th September, 1860, the complainant mortgaged certain premises to the respondent, to secure him for having signed, as security, a note for five hundred dollars, given to Job Prince, as treasurer of the Ministerial and School Fund of Turner. On the 22d June, 1861, the complainant, by deed of warranty, conveyed the mortgaged premises to Edward Pratt, for the sum of two hundred aud fifty dollars, with an agreement, as he says, that this amount, when paid, should be indorsed on the note before referred to, and that the mortgage should be released. [407] The amount was paid by the grantee and the indorser on the note, but the defendant, denying said agreement, refuses to discharge the mortgage or to release the same. The complainant brings this bill to compel the respondent to release to him " all his pretended interest in said mortgaged premises, and that his title thereto may be perfected,” &c. The mortgager or his assignee may redeem upon paying, or offering to pay what is due, after deducting the amount already received and the value of one other tract, of which the mortgage has been foreclosed by him, it having been given to indemnify the respondent for signing as surety. But this complainant has parted with the equity of redemption and is not entitled to maintain the bill. R. S., c. 90, § 6, 13. When the assignee of the mortgager has conveyed the land by deed of warranty, he has no such interest as will enable him to maintain a bill in equity against the mortgagee to redeem the mortgage. True v. Haley, 24 Maine, 297; Elder v. True, 32 Maine, 105. But there is another difficulty in the way of the complainant’s bill, arising from the fact that the alleged agreement was not reduced to writing. In Leavitt v. Pratt, 53 Maine, 147, it was held, upon the same facts as are now asserted to exist, that an unexecuted verbal agreement made by a mortgagee to discharge a mortgage by a release, is void by the statute of frauds. Bill dismissed, without costs. KbNt, Walton, Barrows, DaNporth and Tapley, J J., ooneurred.