
    Lottie Tukey Clapp, Executrix vs. Loring H. Tripp Et Uxor.
    Cumberland County.
    Decided July 15, 1927.
   This case comes here on report by consent of the parties from the Supreme Judicial Court in Cumberland county. By the terms of the report, this court has jury power to decide the facts, upon the legally admissible evidence.

Loring H. Tripp and his wife, these defendants, executed and delivered to Loring’s mother, their mortgage of certain real estate. Since then the mother has died. Action now is by the executrix of her will to foreclose the mortgage.

Against the prima-facie case which the undischarged mortgage, supplemented by the promissory note payment whereof the mortgage was given to secure, with indorsements on the note showing it to be but partially paid, make for the plaintiff, the defense is an accord with satisfaction.

George C. Webber, for plaintiff.

Pulsifer & Ludden and Franklin Fisher, for defendants.'

There is evidence which tends to show that in her life-time the mortgagee agreed with the mortgagors to accept the payment at an earlier time of a part of the whole debt due in substitution of the former one, and evidence also which tends to show the complete performance of the latter agreement to that point whence it was to operate a satisfaction of the pre-existing liability, and be bar to any. suit on the original claim; all which other evidence tends to contradict.

Assuming, what seems consonant to statutory purpose, and that is, that within implied contemplation of the statute authorizing proceedings of this nature, in contradistinction to the common-law rule in real actions, an accord and satisfaction may be pleaded to this kind of a real action, it suffices to say that the competent and believable and believed evidence, taken as a whole, leaves the first-instance proof of a right of action in the plaintiff preponderating still.

The mandate will be, Judgment for plaintiff.  