| Superior Court of New Hampshire | Jul 15, 1854
By section 6 of chapter 181 of the Revised Statutes, it is provided that “ actions upon notes secured by mortgage may be brought so long as the plaintiff is entitled to commence any action upon the mortgage.” This provision, which is general in its terms, has not undergone any change since the revised statutes went into effect, March 1, 1843. Comp. Stat. ch. 192, § 6.
At the time of the revision, in 1842, the law authorizing and regulating mortgages upon personal property was well established, and the practice under it of frequent and common occurrence. Prior to the revision, also, the statute fixing the time within which actions upon notes secured by mortgage might be brought, was in the shape of a saving clause rather than a general and unrestricted section, as it now stands. Laws, 1830, p. 77.
Mortgages of personal property which are under seal, as was the fact with the one set forth in the replication in this case, are contracts under seal; and actions upon any contract under seal may be brought within twenty years after the cause of action accrues. Rev. Stat. ch. 181, § 5.
If, then, the Legislature intended that the provision that actions upon notes secured by mortgage might be brought so long as the plaintiff should be entitled to commence any action upon the mortgage, should extend to notes secured by mortgages of personal property as well as to those upon real estate, the replication in this case was an answer to the defendant’s plea.
And we think that such was the intention, and that such should be the construction put upon the statute. The fact that at the time of the revision of the statutes, in 1842, mort
It would seem but a fair inference, also, that, with the knowledge which the Legislature must have had of the frequent resort to mortgages of personal property, they would have restricted the provisions of the sixth section to mortgages upon real estate, had they not intended that the provisions should be generally applicable to mortgages upon all descriptions of property. And we see no objection to such a construction.
So long, then, as an action may be brought upon a mortgage of personal property, it may also be brought upon the note secured by the mortgage; and the statute limiting the bringing of actions upon simple contracts to six years, does not apply to a note secured by a mortgage of personal property under seal.
This being the only question raised by the case, as we understand it, our opinion is that the declaration is good and that the demurrer must be overruled.
Demurrer overruled.