Martel v. Desjardin

Fogler, J. On exceptions. Writ of entry. Plea, the general issue. The demanded premises are situate in the city of Lewiston. The defendant is summoned to answer unto Eaoul Martel and Marie Louise Martel both of said Lewiston, infants under the age of twenty-one years, who sue this action by Pierre E. Provost, their duly and legally appointed guardian. The question in controversy is whether the plaintiffs have such an estate in the demanded premises as will enable them to maintain the action. — 416 — The case is thus: Lambert Sarazin of St. Hyacinthe in the Erovince of Quebec was appointed in said Province, under the last will and testament of Jean Bte. Germain, deceased, testamentary guai’dian of the plaintiffs, Raoul Martel and Marie Louise Martel, minor children of L. J. Martel and of all other children which may be born of said L. J. Martel’s marriage, May 4, 1893. Said Sarazin loaned to said L. J. Martel five thousand dollars of the funds in his hands as such testamentary guardian, and received from said Martel a mortgage of that date of the demanded premises, under which the plaintiffs claim title. The mortgage ran to “ Lambert Sarazin of St. Hyacinthe of the Province of Quebec in the Dominion of Ganada, guardian of Marie Louise and Raoul, minor children of L. J. Martel under the last will and testament of the late Jean Bte. Germain, made at St. Hyacinthe aforesaid, and of all other children which may be born of said L. J. Martel’s marriage.” Sarazin died about two years before the commencement of this action and an administrator of his estate was appointed in Canada, who died about a year before this suit was commenced. In February, 1899, Pierre E. Provost was appointed guardian of the plaintiffs by the judge of probate for the county of Androscoggin. L. J. Martel conveyed the demanded premises to the defendant by deed which was executed and delivered subsequently to the execution, delivery and record of the mortgage. The plaintiffs claim no title to the demanded premises other than the mortgage above referred to. The presiding justice ruled that the plaintiffs were entitled to judgment and the defendant excepts. We ai*e of opinion that the plaintiffs cannot maintain their action and that the defendant’s exceptions must be sustained. A legal interest in the realty is essential to maintain a writ of entry to foreclose a mortgage or to reduce the mortgaged property to possession. The plaintiff must hold the legal estate at the time he brings the action, and it is immaterial that he holds the estate for the benefit of another. A cestui que trust of a mortgage of real estate cannot maintain a suit of entry for possession of the mortgaged premises. 2 Jones on Mortgages, § 1280; Somes by Guardian v. Skinner, 16 Mass. 348; Young v. Miller, 6 Gray, 152. — 417 — Even in equity, where a suit brought to recover trust property or to reduce it to possession, in no wise affects his relations with his cestuis que trustent, it is unnecessary to make them parties. Carey v. Brown, 92 U. S. 171. In the case at bar, the mortgage under which the demandants claim was in favor of Lambert Sarazin. The legal title was in him although the mortgage was to him as-guardian of the demandants. The demandants took no legal estate in the mortgaged premises and cannot maintain this action to foreclose. This was so held in the similar case of Somes v. Skinner, supra. There a mortgage was taken by one Somes as guardian and for the benefit of his ward who brought the action to foreclose the mortgage. It was held that he could not maintain the action. The court says: “It is true, that the mortgage was taken by N. Somes, guardian of the demandant, and for his benefit; but the legal estate in the mortgage was never in the demandant, and he could not maintain a suit to foreclose the mortgage.” This decision is supported by numerous authorities, among which we cite : Young v. Miller, supra; Pond v. Curtis, 7 Wend. 45; McKinney v. Jones, 55 Wis. 39; Gard v. Neff, 39 Ohio St. 607. The fact that Sarazin, the testamentary guardian, died before the commencement of the suit, gave the demandants no other or better estate than the equitable estate which they had in the lifetime of the guardian. The mortgage debt and the mortgage by which it was secured, at his death, passed to his personal representatives who must account therefor to the court from which the deceased guardian received his appointment. Exceptions sustained.