Wallace v. Stevens

Appleton, C. J. This is a bill brought to redeem two mortgages given by Harrison Stevens, one to the defendant, Alfred W. Stevens, and the other to David Lincoln. It seems that Harrison Stevens, one of the defendants, upon the twenty-ninth day of July, 1867, being seized in fee of a tract of land in Jackson containing about one hundred and twenty-six acres, mortgaged the same to Alfred W. Stevens ; and that upon the twenty-eighth day of October, 1869, he conveyed by deed of warranty twenty-live acres of the mortgaged premises to Gilman Gould and William B. Chapman. The effect of this conveyance was to impose the whole of the mortgaged debt upon the remaining portion of the mortgaged premises, if of sufficient value, as against all but the mortgagee. In such event, Gould and Chapman would not be required to contribute. Cushing v. Ayer, 25 Maine, 383; Holden v. Pike, 24 Maine, 427. Where a mortgagor sells a portion of the land mortgaged, in different parcels, that, which he retains, will be held primarily liable in equity for the whole debt. Brown v. Simons, 44 N. H., 475. It further appears that upon the second day of November, 1871, said Harrison Stevens conveyed in mortgage to David Lincoln two other portions of the mortgaged premises, containing seventy-five acres. [228] ■ Upon the twenty-second day of December, 1871, the complainant, Wallace, at a sheriff’s sale, became the purchaser of the equity of redemption of the mortgage last-mentioned. Upon the twenty-sixth day of December, 1871, said Wallace made a demand upon Alfred W. Stevens to render a true account of the sum due him on the mortgage from Harrison Stevens, dated July 29, 1867, and of the rents and profits, which he declined doing. On the same day, December 26, 187l, but after the demand to ^account, David Lincoln assigned his mortgage before described 'to Alfred W. Stevens, who on the twenty-ninth day of December, 1871, took possession of the premises described in the mortgage V to him of July 29, 1867, for the purpose of foreclosing the same. The bill then alleges that the other four complainants, upon the twenty-eighth day of December, 1872, became the purchasers of all the right in equity that said Stevens had on the seventeenth day of December, 1871, to redeem the remainder of the original mortgage to Alfred W. Stevens, and being the residue of the first mortgaged premises, after deducting what had been previously sold or mortgaged, and containing twenty-five acres. It thus appears that the demand made by Wallace xipon the twenty-sixth day of December, 1871, was nearly a year before the other complainants had acquired any title whatever to redeem the premises, or any portion of the same ; nor was it certain that they ever would acquire such title. They have never made any demand upon the defendant, Alfred W. Stevens, to render a true account of the sum due on his mortgage and of the rents and profits. They cannot take advantage of a demand made before their title accrued. A bill in equity cannot be maintained against an assignee of a mortgage by virtue of a tender to a previous assignee who has since parted with all his interest. Williams v. Smith, 49 Maine, 564. So, here, a demand made before the title of four out of five of the complainants accrued cannot enure to their benefit. The defendant has never be.en required by them to render an account of the amount due on the mortgage they [229] seek to redeem, nor of its rents and profits, &e. He has, therefore, neither neglected nor refused to render such account, for he has never been asked. It is sought to redeem the mortgage to Lincoln of November 2, 1871; but the evidence shows that the assignment of that mortgage to A. W. Stevens was not made until after the demand of Wallace, who had the- equity of its redemption, was made. There has, therefore, been no demand on any one, so far as relates to this mortgage. The bill therefore must fail. Bill dismissed, without prejudice. Dickerson, Danfortii, Yirgin, Peters and Libbey, JJ., concurred.