| Superior Court of New Hampshire | Dec 15, 1844
Had this action been brought against the defendant prior to the proceedings in bankruptcy, he could not have made a defence under any plea. It would not have availed any thing for him to show that he had no title, and he. could not avoid the deed and his covenants by showing that the mortgagees knew that he had no title, and that his covenants were false. If he was in possession, the mortgage would have transferred that, so as to enable the mortgagees to hold, not only against him, but against any one else who could not show a better title.
The proceedings in bankruptcy did not discharge the debt, so far as it is necessary that it should subsist to uphold the mortgage. The mortgagees might have maintained an action against the defendant on the mortgage after those proceedings, if he had not acquired title. Are they in a worse situation because he has since acquired such title ? Were it not for the proceedings in bankruptcy, the title he thus acquired would have passed by the estoppel. If the discharge prevented that, it could go no farther. It could not defeat the mortgage. That is saved by the act. If the discharge does not defeat it, how can the title subsequently acquired defeat it? That title can be of no greater validity by reason of the discharge, unless the discharge operates to defeat the mortgage, which it is evident it does not. And if it does not defeat or impair the mortgage', we do not perceive why all the title which the defendant subsequently acquired does not pass by
It seems however, taking the whole subsequent transaction together, that the defendant acquired only a right of redemption. The conveyance to him and the mortgage back formed parts of the same transaction, and it would operate unjustly upon the party who thus conveyed to the defendant (and he is not chargeable with notice of the defendant’s, previous conveyance when he had no title), to separate the facts of that transaction, and thus by one part of it pass the land to the defendant, and then to the plaintiff by virtue of the estoppel; leaving the other part, to wit, the mortgage back to the grantor, at most but a mortgage of the right of redeeming from the plaintiff’s mortgage.
A judgment against the defendant, probably, will not bind the person from whom he took his tille and to whom he mortgaged back at the same time. But the defendant has no defence.
Judgment for the plaintiff as of mortgage.