
    Atwood W. Harding, in equity, vs. George Jewell and another.
    Waldo.
    Opinion May 26, 1882.
    
      Deed. Equity.
    
    When the grantor by inadvertance or mistake fails to place a seal upon his deed, equity will require him to perfect it so that it will comply with his intention at the time of giving it.
    H and J exchanged farms, J giving H a mortgage back to secure the difference which he was to pay. Neither deed nor the mortgage was sealed. H repossessed himself of his old place, and insured the buildings, and, they being destroyed by fire, collected the insurance, and gave his wife a quitclaim deed of the premises. Held, In a bill in equity H against J to compel him to seal his deed that the decree would issue as prayed for, providing II sealed the deed which he gave J, and procured a quitclaim deed back from his wife, and accounted for the insurance money less the premium, and the rents and profits while he was in possession, and allowed all of such insurance, rents and profits upon the mortgage debt which he held against J, upon the principle, that he who asks equity must do equity.
    Bill in equity to compel the respondents to perfect their deed by affixing a seal.
    Heard on bill, answer and proof.
    The material facts are stated in the opinion.
    
      W. H. Fogler and It. W. Rogers, for the plaintiff,
    cited : Chitty Contr. 104, 105, 111, 1071, 1072 ; Story Eq. Jur. § § 165,1502, note 2; Adams v. Stevens, 49 Maine, 362; 3 Wash. E. P. 333, 349, 350, 368; Moore v. Griffin, 22 Maine, 354; Soutter v. Porter, 27 Maine, 417; Higgins v. Wasgatt, 34 Maine, 308; Abbott y. Abbott, 53 Maine, 356; Bates y. Foster, 59 Maine, 157; Johnson y. Leonards, 68 Maine, 239.
    
      Don A. H. Powers, for the defendants,
    cited: Randall y. Bradley, 65 Maine, 48; Fveleth y. Wilson, 15 Maine, 109; Flder y. Flder, 10 Maine, 80; Miller v. Whittier, 32 Maine, 203; Rowel y. Jewett, 69 Maine, 293; Mclntire v. Plaisted, 68» Maine, 363 ; Gould y. Murch, 70 Maine, 288 ; Thompson v. Gould, 20 Pick. 134; Wells y. Galnan, 107 Mass. 514. '
   Libbey, J.

By the bill, answer and proofs, it appears that the plaintiff, and the defendant, George Jewell, were respectively the owners of farms situated in Troy; and on the ninth day of December, 1873, made an agreement to exchange them; and said defendant executed to the plaintiff what the parties supposed was a deed of his farm, the other defendant, Arvilla. J. Jewell, joining in relinquishment of her right to dower in'the premises; and the plaintiff executed to the defendant a similar deed of his farm, taking back what the parties supposed to be a mortgage, to secure the payment of eight hundred and seventeen dollars and fifty cents, the sum to be paid by the defendant as the difference in the value of the farms. In fact, neither of the deeds or the mortgage was sealed. Each party soon afterwards entered into possession of the premises thus conveyed to him.

The plaintiff repossessed himself of the farm which he intended to convey to the defendant, in July 1876 ; and on the twenty-second day of March, 1877, by deed of quitclaim, conveyed the same to Sarah J. Harding.

After the plaintiff thus took possession in 1876, he insured the buildings on the farm, for seven hundred dollars, and before the commencement of this suit, they were consumed by fire, and the insurance received and appropriated by the plaintiff and Sarah J. Harding.

The plaintiff and Sarah J. Harding have held the possession of said premises since July, 1876, receiving the rents and profits.

The plaintiff brings this bill against the defendants to require them to seal their deed which they executed to him December 9, 1873.

The deeds and mortgage were not sealed through inadvertance or mistake, and equity requires each party to perfect his deed as it was his intention at the time. But the plaintiff while in possession of the farm which he intended to convey to the defendant, executed a quitclaim deed to Sarah J. Harding, which he claims should be construed as an assignment only of the defendant’s mortgage to him. Sarah J. Harding is not a party to the suit, and therefore no construction can now be put upon that deed which will bind her. It is at least a cloud upon the title.

If the plaintiff asks equity, he must do equity, and before be can require tbe defendants to perfect tbeir deed to bim, be must put tbe defendant, George Jewell, in tbe same situation be would have been'in if bis deed to bim bad been sealed when executed. This will require bim to duly seal bis deed, cause Sarah J, Harding to convey to tbe defendant any interest or title wbicb she acquired by tbe plaintiff’s deed to her, except tbe assignment of the defendant’s mortgage; and as tbe loss of tbe buildings before his conveyance to tbe defendant, and while be was in possession, must fall upon tbe plaintiff, (Gould v. Murch, 70 Maine, 288,) be must account for tbe insurance wbicb be received, less the premium paid, and must also account for tbe rents and profits of tbe farm since be took possession in July, 1876. Tbe insurance and rents and profits may be applied in payment of tbe mortgage, pro tanto, and if any balance remains it must be paid to the defendant, with interest.

Upon performance, or tender of performance by the plaintiff of tbe foregoing requirements on bis part, tbe defendants must seal tbeir deed to bim.

If tbe parties cannot agree upon tbe amounts to be allowed for tbe insurance and rents and profits, tbe case must go to a master to state tbe accounts between tbe parties.

If tbe plaintiff does not elect, at the next term of court in tbe county, after tbe case is certified, to comply with tbe foregoing requirements on bis part, tbe bill must be dismissed with costs for tbe defendants.

Decree accordingly.

Appleton, C. J., Barrows, Virgin, Peters and Symonds, JJ., concurred.  