It is evident that under the facts stated in the bill in this case, which are admitted by the demurrer, no decree can be passed which will aid the plaintiff in obtaining his rights. His prayer is that the mortgage described in his bill and the debt for which it was given to secure, and which he has paid, " may be decreed to be still subsisting ; that he may be subrogated to the rights of the mortgagee therein, and may be empowered to foreclose the same according to law.”
The facts show that when the plaintiff paid the debt, both the note and the mortgage were surrendered to him, "without cancellation or discharge executed thereon, or on the record thereof,” and by a fair inference that no discharge was intended by either party. The mortgage, then, is subsisting by virtue of these facts, and a decree of court could add nothing to its force, would not change the facts, or to any extent change the condition or rights of the parties. When the plaintiff seeks to enforce his mortgage, he must stand or fall by the facts as they shall then appear, regardless of any decree of the court, or the want of it. Here is no discharge to be cancelled, as in Gobb v. Dyer, 69 Maine, 494; no fraud or mistake to be rectified; nothing for the defendants to do, or to refrain from doing; nothing to be accomplished by the decree asked; and if granted, it would leave the parties in the same relative position in which it finds them.
It further appears that the plaintiff paid the debt secured by the mortgage as surety, and to l’elieve his own land from the incumbrance. This would entitle him to be subrogated to all the rights of the creditor and mortgagee to and under the mortgage, except so far as he may have lost them by some act or omission of his own. Cummings v. Little, 45 Maine, 183; Norton v. Soule, 2 Maine, 341; Crafts v. Crafts, 13 Gray, 360.
It is equally evident that a decree empowering the plaintiff" ,!to foreclose the mortgage according to law,” would not only bo unavailing, but unauthorized. If he has that right the court could, by a decree, neither aid nor hinder. If there is anything* lacking, the decree would not supply it. There does not appear to have been any assignment of this mortgage, and though the court might compel one in a proper case, it can not make one for the parties. That the plaintiff is entitled to one, may be clear enough. Wall v. Mason, supra; Allen v. Clark, 17 Pick. 47. That he must have one to entitle him to foreclose- and thereby obtain a legal title to the land, is perhaps equally clear. Prescott v. Ellingwood, 23 Maine, 345; Lyford v. Ross, 33 Maine, 197.
But if the bill is intended as a process of foreclosure in equity it is equally unavailable. Shaw v. Gray, 23 Maine, 174. It is true that since this decision the equity powers of the court have been enlarged. But at that time the court had equity jurisdiction "in suits for the redemption or foreclosure of
As stated in Titcomb v. McAllister, 77 Maine, 357, "there may be instances of chattel mortgages where the statute mode of ■foreclosure would not be applicable, or would not provide a plain, ¡adequate and complete remedy for the mortgagee. In such instances, the court might afford relief in equity;” so possibly in mortgages of real estate, where it is necessary to resort to extrinsic matters in aid of a foreclosure,-the statute provision might not ■be sufficient. But this is not a chattel mortgage, nor are there ¡any facts developed which make it an exception to the general nule.
In Cobb v. Dyer, supra, the decree was not technically one of tforeclosure, but rather one of sale founded upon a special pro■■vision in the mortgage authorized by a later statute, and under ■.facts not applicable to this case. The mortgage now in question, so far as appears, is of the common form, containing no provision in relation to a foreclosure ; so that if the plaintiff resorts to the mortgage for security he must foreclose in some one of the ¡methods provided by the statute. In either of these ways com¡pleted he would acquire a title to the land. In neither of them ■can the defendants, or either of them, be compelled to redeem, nor can the court order a sale. It does not as yet appear that .-any of the defendants propose to redeem. Hence there is no occasion to settle the amount due on the mortgage. That can be done only in an action at law to foreclose, or by a bill in equity by the owners of the equity of redemption to redeem. By this latter process and perhaps by the former, not only the amount due on the mortgage, but the proportion which each party must pay, will be directly presented. It cannot be in the process now before the court.
LUI dismissed with single costs.