Hawes v. Williams

Haskell, J. One Ira W. Page being the owner of certain land conveyed the same in fee to Lawrence Williams then alive, but now dead. At the same time Williams gave Page a writing, not under seal, agreeing, among other things, that if Page should pay him fifteen dollars a month until he shall have paid $1500 with interest, that he, Williams, would reconvey the land. The writing contained a stipulation that Page might occupy the premises so long as he fulfilled his part of the agreement, but that upon breach of any part of it he should forfeit all right to the land and money paid on account of it as well. It appears that Page was owing $1500 secured on the land; that he applied to Williams for a loan of that amount on a mortgage, but that Williams said “he was not in the habit of taking mortgages on property at all; he would rather not if he could fix it in some other way ”; thereupon he advanced the money, took a warrantee deed of the property and gave back the writing before mentioned. “A legal mortgage was avoided; an equitable mortgage was made.” “If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage.” Flagg v. Mann, 2 Sum. 533; Stinchfield v. Milliken, 71 Maine, 567. “Equity deals with the substance of things regardless of form or methods.” Gray v. Jordan, 87 Maine, 140; Libby v. Clark, 88 Maine, 32. II. Revised Statutes, c. 90, § 12, provides: “Lands mortgaged to secure the payment of debts, or the performance of any collateral engagement, and the debts so secured, are on the death of the [491] mortgagee, or person claiming under him, assets in the hands of his executors or administrators; they shall have the control of them as of a personal pledge; and when they recover seizin and possession thereof, it shall be for the use of the widow and heirs, or devisees, or creditors of the deceased, as the case may be; and when redeemed, they may receive the money, and give effectual discharges therefor, and releases of the mortgaged premises.” No good reason appears why the above statute should not apply to equitable mortgages as well as to legal mortgages. They are both security. In neither one is the title absolute in the mortgagee. They are both subject to redemption and foreclosure. In substance, they more nearly represent money than land. Redemption turns them into money. Foreclosure of a legal mortgage produces a fee, while foreclosure of an equitable mortgage, which is sometimes by sale, yields money. Indeed, the equitable mortgage is more nearly akin to money than a legal mortgage, when its nature is fairly considered. We think the statute applies to “lands mortgaged,” just as it reads; whether they are mortgaged in equity or in law, and that such mortgages are assets in the settlement of estates of deceased persons to be applied and distributed as personal estate. III. Mortgages are assets, and mortgage debts are credits. The latter should be included in the inventory of estates of deceased persons and charged to the executor or administrator like all personal estate, and until redemption has expired, they hold the land “ in trust for the persons who would be entitled to the money if paid,” but if not paid, they may sell the debt and mortgage as personal estate and assign both. R. S., c. 65, § 32. “Any such real estate may, for the payment of debts, legacies or charges of administration, be sold by a license of the probate court like personal estate.” Sec. 33. If neither redeemed nor sold “it shall be distributed among those who are entitled to the personal estate, but in the manner provided in this chapter for the partition of real estate; or the judge of probate or the supreme court may order it sold by the executor or administrator, and the money received distributed as personal estate. Sec. 35. But, if tbe mortgage be [492] equitable, and there be no writing or other evidence of a debt from the mortgagor that can be enforced at law independent of the security, the land may as well be inventoried as real estate, and only when reduced to cash, by redemption or sale, would the proceeds become chargeable to the executor or administrator. All this logically follows from the provisions of the statute before named. By its terms, lands mortgaged and the debts secured thereby upon the death of the mortgagee, become assets in the hands of his executors or administrators. The statute speaks of both security and of the debt, which from its nature is an asset. They, the executors and administrators, shall have control of them, the lands, as a personal pledge, and their possession shall be for the widow and heirs or devisees, or creditors, and when redeemed are to receive the money and give the proper discharge or release. When mortgages become foreclosed in such cases, the lands become vested in the widow and heirs or devisees as tenants in common until sold for the benefit of the creditors or otherwise in administration. Longley v. Longley, ante, p. 395. When redeemed the money, of course, becomes assets in the hands of the executors or administrators and should then be charged to them, unless the mortgage debt has already been inventoried as before stated, and of course charged to them as included in the inventory. In the case at bar, Page redeemed the land and paid the money to the administrator of the mortgagee, who claimed to receive it as agent for the heirs of whom he was one, and omitted to charge himself with it as assets of the estate as he should have done. The plaintiff brings this bill, as administrator de bonis non of the widow of the deceased, to collect her moiety of the heirs who have received the money. His remedy is in the probate court, where such matters are heard and determined. He sues for a distributive share of an estate. Such action does not lie before the amount to be distributed has been ascertained in the probate court. The case of Graffam v. Ray, 91 Maine, 234, is in point. There the residuary legatee sued the administrator'for devastavit. The doctrine of the case is that all distributive shares must be determined in the probate court, before they become payable to the distribu [493] tee. This bill therefore cannot be maintained, but the defendants, who detain assets to which they are not entitled, should not recover costs. Bill dismissed.