Robinson, 96 Me. 474, 52 Atl. 930, 90 Am. (115 Me. 418) ALBEE v. LORING et al. (Supreme Judicial Court of Maine. WILLS 1916.) Nov. 19, 695(2)-SUIT FOR CONSTRUCTIONSCOPE OF INQUIRY. On a bill in equity for the construction of a will, the court will not pass upon the validity of mortgages previously executed. [Ed. Note. For other cases, see Wills, Cent. Dig. 1667; Dec. Dig. 695(2).] Exceptions from Supreme Judicial Court, Lincoln County, in Equity. Bill in equity by Charles I. Albee against Atherton Loring and others. To a decree sustaining demurrers by defendants Loring and another, plaintiff excepts. Exceptions overruled. Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, and PHILBROOK, JJ. A. S. Littlefield, of Rockland, for plaintiff. Payson & Virgin, of Portland, Whipple, Sears & Ogden, of Boston, Mass., and Eben Winthrop Freeman, of Portland, for defend ants. PHILBROOK, J. This is a bill in equity praying the court to construe the provisions of the will of Sarah E. Albee, mother of the plaintiff, and also to determine and decree that certain mortgages given by the plaintiff and by Charles H. Albee, one of the defendants, are null, void, and of no effect. Loring and Gorman, two of the defendants, demurred to the bill. The remaining defendant, Charles H. Albee, filed no plea, answer, or demurrer. The court below sustained the demurrers filed by Loring and Gorman, and the case is before us upon exceptions to that ruling. cept August, that the will was not filed in said probate court until the December term, December 7, 1909, and was not proved and allowed until the January term, January 4, 1910. After disposing of her personal property, the testatrix by the second item in her will gives "all the rest and residue of my property, of every name, nature and description, to my said son, Charles I. Albee (the plaintiff in this case) for the term of his natural life, with power to receive the income only therefrom, and to use said income in such manner as he may deem necessary or advisable." By further provisions of the will the said son, as executor, was authorized to sell any part or all of the property so devised to him, or to mortgage the same in fee simple, or for a less estate, or to lease the same for a term of years, even though a term of lease may extend beyond his life. No license or decree of court, so the will provides, was to be required to authorize any such sale, mortgage, or lease, and no purchaser was to be liable for the application of the purchase money, but the son was to hold the proceeds of any such sale, mortgage, or lease, with a life interest only in the same, and only with power to use the income thereof. The will also provided that if the son deemed it necessary to use any part or all of the property devised to him, or the proceeds of sale of such property, for his own comfortable support and maintenance, he was authorized to do so, and the exercise of that right was to be his personal privilege, but such property or proceeds of sale was to be used only by him and for his own support and maintenance. Charles H. Albee, grandson of the testatrix and one of the defendants, as above stated, was made remainderman under certain conditions not necessary to discuss at this point. On the 30th day of November, 1909, about six weeks after the death of Sarah E. Albee, the plaintiff and the Eastern Coal Company, of which plaintiff was then treasurer, entered into an agreement in writing with Loring whereby the latter was to loan $10,000 to said company, which was to give its note, payable in two years, with interest at 6 per cent., indorsed by the plaintiff, and as additional security for the loan the plaintiff agreed to give Loring a first mortgage on certain real estate which, in the agreement, he referred to as property "recently inherited from his mother, Sarah E. Albee." agreement was carried out, the loan made, and on the 1st day of December, 1909, plaintiff gave a mortgage to Loring of lands which were referred to in that instrument as lands which "came to me by inheritance from my mother, Sarah E. Albee.” The From an examination of the record it appears that Sarah E. Albee died testate on the 19th day of October, 1909, that the will was duly proved and allowed, and that the plaintiff was appointed executor of the estate. The bill does not aver, nor does the record disclose the date, when the will was probated and the executor appointed, but in argument On the 6th day of May, 1912, the plaintiff it is asserted by the defendants who demur gave to the defendant Gorman a mortgage that the probate court for Lincoln county, for $5,000 on a portion of the land described the county in which the will was probated, in the mortgage to Loring. It is alleged in sits on the first Tuesday of each month ex- the bill, and necessarily admitted by the de murrer, that this second mortgage was given to secure a debt due to the Gorman-Leonard Company from the Eastern Coal Company In this second mortgage the plaintiff referred to the land as "being the same property left to me under the will of Sarah E. Albee, who died on the nineteenth of October, 1909." On the 20th day of July, 1912, at the special request of Loring, as the bill alleges and the demurrer admits, the plaintiff gave another mortgage for $10,000 on the property to Loring, but in this mortgage the plaintiff described himself as "executor of the last will of Sarah E. Albee," and further declares that it is given to secure the payment of "a certain note for ten thousand dollars ($10,000) dated Dec. 1, 1909, signed by the Eastern Coal Company and indorsed by me as executor." and that the referees shall find when "rent is due and the amount thereof." The referees and rendered "a verdict of nonsuit," and the found there was not a just demand for rent, justice entered judgment of nonsuit and for costs. Held, an objection that a verdict of nonsuit by the referees was inconsistent with the requirement of the statute would not be sustained. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 288, 289; Dec. Dig. 86(7).] Argued before PENNEWILL, C. J., and Wm. Watson Harrington, of Dover, for de- fendant. Attachment for rent, not due, upon an affidavit before a justice of the peace, by Daniel Scanlon, landlord, against Edward tion 4586, Rev. Code 1915. Judgment of nonsuit, and for costs in favor of the defendant. The plaintiff brings certiorari. Affirmed. On the same 20th day of July the remain-Cohee, his tenant, under the statutę. Secderman, Charles H. Albee, who is also one of the defendants, as we have seen, gave a mortgage to Loring of all his "right, title and interest under said will," not mentioning what will, but substantially describing the tracts mentioned in the mortgages given by Charles I. Albee, to secure the payment of "a certain note for ten thousand dollars ($10,000) dated December 1st, 1909, signed by the Eastern Coal Company and as security for the payment of which two certain mortgages have been given, one by Charles I. Albee, individually, and one by Charles I. Albee, executor." These four mortgages the plaintiff asks us to declare null, void, and of no effect. Section 4589 Rev. Code 1915 provides that: "If the tenant deny the demand of rent, whether the same be in arrears or falling due, issue to be tried by a jury at the bar of the court the court or justice of the peace shall direct an or by a reference to three judicious and impar tial citizens before a justice of the peace just demand of rent and the amount thereof, for ascertaining whether there be a and their verdict shall be final and conclusive.' * * The defendant having denied the demand of rent claimed from him by the plaintiff, the justice directed that the issue be tried by three judicious and impartial citizens, who were chosen and sworn as by the statute required. The issue coming on to be heard before the referees, and after hearing the allegations and proofs of the plaintiff, counsel for the defendant moved for a nonsuit. The referees reported that: and hereby render a verdict From this statement of the case it seems quite apparent that, under the guise of a request to construe the provisions of the will, the real object sought is to have the validity of these mortgages passed upon, in other words, to pass upon the validity of completed transactions carried through by parties inAfter having heard the allegations terested in the estate. Whether this court of the plaintiff and his proofs, and maturely should assume or decline to assume juris- considering the same, do report that we find diction in such a controversy was very fully there is no just demand for rent as shown by the plaintiff * and learnedly discussed in Haseltine V. of nonsuit." Shepherd, 99 Me. 495, 59 Atl. 1025. It was there held as a general proposition that in a bill in equity praying for the construction of a will the court would decline to express any opinion as to the validity of past sales. This position is still adhered to. As the construction of the will in question could not appropriately deal with any other controversy raised by the plaintiff, we hold that the ruling of the court below was correct. Exceptions overruled. Thereupon the justice entered the following judgment: referees, judgment for nonsuit is hereby given ** * the The exceptions were to the effect that the referees could not render such a verdict as they did, and that the judgment entered thereon is invalid. The contention was made that the verdict of the referees was inconsistent with the requirement of the statute that they should ascertain whether there be a just demand of rent and the amount thereof. Counsel for the defendant relied upon Wright v. Hayes, 2 Har. 389, which, though said deed for the first mentioned lot of land, an action in assumpsit, he maintained was applicable in principle to this case. PENNEWILL, C. J. The exceptions are rather technical. We are constrained to affirm the judgment below on the authority of Wright v. Hayes, 2 Har. 389. Judgment below affirmed. (6 Boyce, 245) In re ADAIR. (Superior Court of Delaware. May 15, 1916.) MORTGAGES 529(3, 10)—FORECLOSURE SALE he, the said Eastburn borrowed the sum of one thousand, five hundred dollars from one, Allen B. Clement, plaintiff in the writ of levari facias, No. 19, May term, 1916, under which said lands were sold by the sheriff "for the purpose of providing for sundry expenses in relation to the said transactions incurred, or about to be incurred in connection therewith, by or on behalf of your petitioner and for the further purpose of providing for the balance of the said consideration money for the said real estate, New Castle. acquired from said Prickett, and your petitioner is informed and believes that the said moneys were obtained by the said Horace G. Eastburn, as attorney, for and on her behalf, and that any other use than that intended by her and represented to her would be a fraud upon her rights; that thereafter, to wit, on or about the second day of October, A. D. 1912, the said Horace G. Eastburn and Jean A. Eastburn, his wife, the defendants in the above stated writ, by an indenture of mortgage, duly executed under their hands and seals, in which said mortgage the said Allen B. Clement, designated as 'trustee' was named as mortgagee, conveyed in fee simple unto the said Allen B. Clement, trustee, both of the said pieces of real estate to secure unto the said Allen B. Clement the payment of the said sum of An application to set aside a sheriff's sale on a writ of levari facias, issued on a mortgage foreclosure, must be made by the defendants in the writ, or one of them, or by a judgment creditor whose judgment is a lien upon the property sold, and cannot be made for the purpose of trying title between persons not parties to or directly affected by the sale. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1538, 1539, 1543-1548; Dec. Dig. 529(3, 10).] Petition by Julia A. P. Adair for rule directed to Horace G. Eastburn and wife, mortgagors, Allen B. Clement, purchaser at sheriff's sale, under foreclosure proceedings, and Harry J. Stidham, sheriff, making the sale, to show cause why the sale should not be set aside. Rule discharged, and petition | fifteen hundred dollars with interest, etc., dismissed. It was averred in the petition substantially as follows: That on or about the twenty-fifth day of September, A. D. 1912, the petitioner was the owner in fee simple of a lot of land, situate in etc., described, etc.; that on said date the petitioner conveyed said lot of land to Horace G. Eastburn, Esq., but received no consideration therefor at that or at any other time subsequent or prior thereto; that the said Eastburn on and about that time and for a long time prior thereto, was acting as attorney for your petitioner particularly with reference to certain other real estate situate in, etc., and described, etc., and acting as attorney as aforesaid, the said Eastburn took title to the said last mentioned real estate from William S. Prickett, Esq., the consideration being the sum of six thousand seven hundred and forty dollars and thirty-five -cents mainly secured by a first mortgage for five thousand five hundred dollars, executed by the said Eastburn and his wife; that the said first mentioned lot of land was conveyed by the petitioner to said Eastburn without consideration, as attorney for your petitioner to enable him, as such to perfect arrangements for taking over in his name, the legal title to the real estate acquired from said Prickett, for her benefit and behalf; that on or about the first mentioned date after the delivery to him, the said Eastburn, of the which said mortgage was subsequently foreclosed on which the above stated writ was issued;" that the petitioner filed a bill in equity, the object of which was to establish the rights and title of your petitioner to said real estate; that the Chancellor entered a decree in the said cause in favor of the said Horace G. Eastburn and against your petitioner; thereupon, your petitioner gave notice to said court that an appeal from the Chancellor's decree would be taken to the state Supreme Court and she avers her intention to take and perfect the said appeal, etc.; that on the first day of May, A. D. 1916, Harry J. Stidham, Esq., sheriff of New Castle county, under and by virtue of said writ of levari facias, sold the first mentioned lot of land and a part of the second mentioned real estate at public sale to Allen B. Clement, plaintiff in the said writ, for the sum of one thousand dollars, and has made his return to this court, "advertised," etc., that the petitioner is informed and believes that the foreclosure proceedings in this court, through which the judgment on which said writ was issued were brought by collusion of the parties thereto for the purpose of defrauding her of her rights in the premises; that the said parcels of real estate, so sold as aforesaid, are of the value of more than seven thousand dollars; that the said sale of said real estate should not be confirmed by this honorable court, but should be set aside for reasons particularly stated, and 1. It does not appear from the petition and affidavit filed that the petitioner was a party to, or interested in, the foreclosure suit as a result of which said lands were sold by the sheriff. 2. It affirmatively appears from the petition and affidavit filed that the petitioner is not a party to the foreclosure proceedings mentioned, also that she is neither plaintiff nor defendant in said writ; that she is not a judgment creditor whose judgment is a lien upon said lands so sold by said sheriff, and that she has no sufficient interest in the said foreclosure suit and the proceedings thereunder to warrant this court in going into a hearing upon the said rule. Artemas Smith, of Wilmington, for petitioner. David J. Reinhardt, of Wilmington, for respondent. HEISEL, J. We sustain the motion to dismiss the rule, on the ground that the petitioner is not such a party as has the right in a proceeding of this character to make objection to the confirmation of the sheriff's sale. Woolley on Delaware Practice lays it down that the application must be made by the defendant or defendants in the writ, or one of them, or by a judgment creditor whose judgment is a lien upon the property sold. So that the person who can object to the confirmation of the sheriff's sale in a proceeding of this sort has to be one whose interest appears by the records of this court, and cannot be brought for the purpose of trying title between persons, not parties to, or directly affected by the sheriff's sale. Petition dismissed. Let the costs of this proceeding be taxed against the petitioner. (6 Boyce, 249) 3. It affirmatively appears that the matters and issues of fact set forth in said petition, were litigated and finally determined adversely to said Julia A. P. Adair in a certain suit heard in the Court of Chancery between her and the said Horace G. Eastburn, and that no appeal from said final decree has yet been taken, or perfected. Said pe- (Court of General Sessions of Delaware. titioner is therefore estopped from now setting up or relying upon any of said matters and issues of fact, in any hearing upon the sale rule. Strangers to an action have usually no right to interfere with its management, nor to complain of its result. 2 Freeman on Execution, § 305; McLaughlin v. Bradford, 82 Ala. 431, 2 South. 515. The rule is general that a former judgment on the merits, between the same parties, in a court of competent jurisdiction, is conclusive and final as to any issue actually litigated and determined in the former actions however erroneous, and which issue is essential to the maintenance of a second action between them though it be brought upon a different cause of action. Jones v. Warner Co., 2 Boyce, 572, 83 Atl. 131; Worknot v. Millen's Adm'r, 1 Har. 139. A general dismissal of the complainants' bill, after a consideration of it on the merits thus denying the relief prayed by him, is a final judgment or decree. 13 Ency. L. 36; 24 Ency. Law, 803, 811; Hubbell v. United States, 171 U. S. 203, 18 Sup. Ct. 828, 43 L. Ed. 136. STATE v. PAXSON. New 50 CRIMINAL Castle. Nov. 21, 1916.) 1. ASSAULT AND BATTERY RESPONSIBILITY-"ASSAULT." An "assault" is an attempt or offer by I violence to do hurt or injury to another, with the present ability to carry the intention into effect. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 70; Dec. Dig. 50. For other definitions, see Words and Phrases, First and Second Series, Assault.] 2. ASSAULT AND BATTERY 50-CRIMINAL RESPONSIBILITY ELEMENTS OF OFFENSE INTENT. The intent with which an assault is made need not be a specific purpose to do a particular injury, wantonness or mere recklessness being sufficient, but there must be a present ability to carry the unlawful intent into effect, such, at whom it is directed in fear of injury unless he least, as to reasonably put the person against retreat. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 70; Dec. Dig. 50.] 3. ASSAULT AND BATTERY 48- CRIMINAL RESPONSIBILITY-ELEMENTS OF OFFENSE. It is not essential that the person charged with an assault should be within striking distance of the person assaulted, and there need be no actual contact of the person if the physical force or violence put in motion is such as to create a reasonable apprehension of physical injury. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 68; Dec. Dig. 48.] 4. ASSAULT AND BATTERY 69-CRIMINAL RESPONSIBILITY-JUSTIFICATION. Counsel for the petitioner contended that Mere entry or trespass on the lands or prialthough certain matters averred in the pe- vate way of another, however wrongful, will not tition had been passed upon by the Chancel-justify or excuse resort to a deadly weapon, or lor, yet the time not having expired for the to any more force than is reasonably necessary to drive the intruder off. petitioner to take an appeal to the Supreme Court, said matters were not res adjudicata. Argued before RICE and HEISEL, JJ. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 99-101; Dec. Dig. 69.] automobile left the tracks showing where it had stood, and that the distance, as measured Eugene E. Paxson was indicted for as- one hundred and twenty-nine yards; that the sault and battery. Verdict of guilty. Argued before BOYCE and RICE, JJ. Armon D. Chaytor, Jr., Deputy Atty. Gen., for the State. Levin Irving Handy, of Wilmington, for defendant. The state introduced evidence to show that on the evening of May 22, 1916, the prosecuting witness, Edgar P. Young, in company with four ladies, proceeded in Young's automobile, from their home in Chesapeake City, Maryland, to Middletown, Delaware; that after purchasing candy and ice cream in Middletown, they proceeded on the return trip to Chesapeake City, and that, somewhere between 9:30 and 9:45 o'clock they approached the residence of the defendant, and when on the public road opposite the open entrance to the lane of the defendant they decided to turn into, and did turn into, the defendant's lane just far enough to clear the rear wheels of the automobile from the public road, that they then stopped the automobile under a tree which grew beside the lane and which threw its branches out over the lane, turned off the head lights, leaving the side lights and rear light burning, that they did this because they thought they could sit in the motionless automobile and enjoy the candy and ice cream better than when the automobile was in motion, that they were there about five or ten minutes when they heard a voice up the lane say: "What is the trouble down there?" to which the prosecuting witness replied, "There is no trouble," and immediately put his hand on the starter and started to back into the road; that at about that time two barrels of a shot gun were fired directly at them; that the impact of the shot upon some part of the automobile could be distinctly heard, and that when the automobile was entirely off the defendant's land and out on the public road, the second shot was fired, that the flash of the gun could be distinctly seen both times, but that they could not see who fired the gun. The defendant introduced evidence to show that no shots were fired at an automobile at the time testified to by the state's witnesses, but that sometime between 11 and 11:30, he, the defendant, was awakened in his bed room by his mother complaining of an automobile headlight shining in her bed room window, that after going to his mother's room and seeing the light, he went downstairs without dressing and stood for awhile upon his front porch, that he heard voices, which to him sounded like male voices, at a point which to him seemed about thirty feet from where the automobile was standing and in the direction of his chicken house; that the distance from the porch down to the entrance of the lane from the public road, was from the front porch to where the automobile stood, was eighty-four yards; that upon hearing the voices he went into the house and got his gun; that he then returned to the porch and called out, "Are you in trouble?" and someone replied, "No," that he then said, "What do you want in here?" and the next reply came back, "None of your damned business," and that he then shot at the machine; that thereupon the lights on the front of the machine went out and he heard a noise like the starting of an engine and supposed they were backing out. defendant admitted that he also shot a second time but claimed that that shot was up in the air. The On addressing the jury at close of the testimony the deputy Attorney General asked for a verdict of guilty of assault only. BOYCE, J., charging the jury, in part: [1] Gentlemen of the jury: An assault is an attempt, or offer, by violence, to do hurt or injury to another, with a present ability to carry the intention into effect. [2] The intent with which an assault is made need not be a specific purpose to do a particular injury, wantonness or mere recklessness being sufficient. To constitute an assault there must be a present ability to carry the unlawful intent into effect, such, at least, as to reasonably put the person against which it is directed in fear of injury, unless he retreat. [3] It is not essential that the person charged with making the assault should be within striking distance of the person assaulted. Indeed to constitute an assault there need be no actual contact of the person, if the physical force or violence put in motion is such as to create a reasonable apprehension of physical injury. [4] The jury having considered the case for sometime in their room, sent the following query to the court: "The jury wish to know if a man is guilty of assault when he shoots at a trespasser at night after calling to him and receives no satisfactory answer?" Being directed so to do, the jury returned to the court room, when the court instructed them that a mere entry or trespass upon the lands or private way of another, however resort to the use of a deadly weapon, or, wrongful it may be, will not justify or excuse indeed, the use of any more force than is reasonably necessary to drive the intruder off. The means which one may employ in defense of his house, or against the felonious taking or destruction of his property need not be considered. Verdict, guilty of assault. |