Bragdon v. Hatch

Walton, J. A mortgagee’s title will not support a complaint for forcible entry and detainer against the mortgagor, or those [434] claiming under him, unless the mortgage has been foreclosed. Jewett v. Mitchell, 72 Maine, 28, and cases there cited. The evidence of foreclosure in this case is not sufficient. The only evidence of the facts necessary to constitute a foreclosure, is a certificate of the mortgagee. He certifies that he published a notice of foreclosure in the Sanford Weekly News, published weekly in Sanford, in said county ; but he does not say that the Weekly News was printed in Sanford, or within the county. In Blake v. Dennett, 49 Maine, 102, such a certificate was held to be defective ; for the statute requires the notice to be published in a newspaper printed in the county; and a newspaper may be published in a county, and yet not be printed there ; and when the foreclosure of a mortgage is claimed, a strict compliance with the provisions of the statute must be shown. Besides, we do not think a certificate of the mortgagee is competent evidence. The act of 1849, c. 105, (B. S., c. 90, § 5, clause 2,) makes the certificate of the register of deeds prima facie evidence of the publication of a notice of foreclosure ; but there is no statute or rule of evidence that makes the certificate of the mortgagee evidence of the fact; and we think it is not competent evidence. Judgment for defendants. Virgin, Libbey, Emery and Haskell, JJ., concurred. Peters, C. J., concurred in the result.