Deming v. Comings

11 N.H. 474 | Superior Court of New Hampshire | 1841

Parker, C. J.

Prior to the 26th of August, 1837, Austin Tyler became assignee of the mortgage made by Cook to Spaulding, and the defendant, Comings, was the owner of the equity of redemption, by a conveyance of the demanded premises from Cook, subject to the mortgage.

On that day Tyler commenced a suit against the defendant, upon the mortgage, and at the October term, 1837, obtained a conditional judgment, for possession, unless the defendant paid fill-03, with interest, and costs, within two months from the date of the judgment. The writ of possession was executed April 6, 1838, and the defendant attorn-ed and became the tenant of Tyler, and was to pay him rent. This was a good possession, on the part of Tyler, for the purpose of foreclosure. Peaceable possession, by the defendant, as his tenant, under this agreement, for the term of one year, without any attempt to redeem, would operate as a foreclosure of the mortgage. 4 N. H. Rep. 424, Kittredge vs. Bellows.

There was no tender of the money due, within the year. Articles of produce were received, which, by the agreement of the parties, were to be applied in payment; but it does not clearly appear that they amounted to the sum due, as found by the conditional judgment. It is immaterial how this may be, for the defendant afterwards settled that account with Tyler, and took his note for the balance, which he subsequently negotiated, and which has been paid. The defendant, alter that, cannot say that this transaction operated as a redemption of the mortgaged premises. The produce cannot be applied to the mortgage debt after he has received payment for it in another mode ; and by taking Tyler’s note upon the settlement, and negotiating it, he effectually rescinded the contract by which the produce was to be applied to the payment of the mortgage debt.

If, then, Tyler had not assigned the mortgage before the expiration of the year, there would clearly have been a foreclosure, on the facts thus stated—the defendant having remained in the actual possession of the premises more than a year after he thus became the tenant of Tyler.

But, a short time before the expiration of the year, Tyler assigned the mortgage to the plaintiff, and the next question is upon the operation of this assignment. The tenant still continued in possession.

For some purposes the assignment of a mortgage is to be regarded merely as the transfer of a debt, charged upon land, the mortgage being incident to the debt. For all the purposes of security to the assignee and to enable him to obtain any just remedy under the mortgage, the assignment of the debt and mortgage passes the legal estate. It is said, in Hills vs. Eliot, 12 Mass. R. 26, that by an assignment the assignee is put in the place of the mortgagee to all intents and purposes.

There seems to be nothing to prevent the assignment of the mortgage title, in the fact that the mortgagee has taken possession of the premises, and holds them by a tenant. The entry of the mortgagee, and a possession by him, does not change the nature of his interest, or prevent it from being assignable, with all its incidents. The assignment does not of itself operate to stay the foreclosure. 8 N. H. Rep. 434, Bailey vs. Willard; 7 Greenl. R. 382, Thompson vs. Chandler.

If an assignment is made just before the expiration of the right to redeem, with a view of preventing the redemption, that may be regarded as a fraud, of which the party shall not take advantage to foreclose the mortgager, or his grantee, until he have a reasonable time to make a tender to the assignee. If made a short time before the expiration of the right to redeem, without fraud, it may keep the equity open, until the mortgager, or those claiming under him, by the exercise of reasonable diligence can find the assignee, and offer to perform the condition. Where an assignment is made, and no notice is given to the owner of the equity of redemption, a payment by him to the mortgagee has been held valid. 4 Vesey, Jr. 189, Williams vs. Sorrell; 6 Johns. Ch. R. 427, James vs. Johnson. But these matters become immaterial in this case, by the subsequent proceedings extending the time of redemption.

The defendant held over after the expiration of his lease from Tyler, but this was not an adverse possession, or evidence of such a possession. 1 Caines' R. 394, Brandter vs. Marshall. He was tenant still to some one. Of course he was tenant to the plaintiff, who then held the mortgage title, by the assignment fromTyler, after Tyler had taken possession, and the defendant had become tenant.

Such being the relation of the parties, and the defendant having all the right to redeem that existed, (whether prolonged or not by the assignment, is of no consequence,) the plaintiff, on the 5th of June, 1839, made a lease of the premises to the defendant, to hold until the first of April, 1840, and the defendant agreed to surrender the possession at that time. The lease reserved to the defendant all the right in equity to redeem the premises, during the term, which he had at its date. This is not in terms the acknowl-edgement of an existing right. It might, perhaps, standing alone, be regarded, as has been argued by the counsel, merely as the extension of the right to redeem in case any then existed. But the receipt, by the plaintiff, of a part of the mortgage money from the defendant at the same time, was a waiver of any foreclosure that might otherwise have existed. 6 N. H. Rep. 12, Robinson vs. Batchelder; 4 Greenl. R. 495, Quint vs. Little; 1 Sumner's R. 109, 118, Dexter vs. Arnold. And the clause in the lease, taken in connection with this payment, clearly extended the time of redemption to the first of April, 1840.

Within that time the defendant made a tender, and the remaining question is, whether it was sufficient. He tendered no more than the balance of the amount which was due and payable when the conditional judgment was rendered. But in the mean time other notes had arrived at maturity. The conditional judgment was entered upon the first note only. The second became due April 1, 1838. The possession of Tyler was undoubtedly taken for the * purpose of foreclosure, it being after condition broken, and there had been a possession of more than a year under the mortgage after the second note became due, when the agreement of June 5th, 1839, opened or continued the right of redemption. But this was a right to redeem on the payment of the money which had become payable. The defendant could not redeem in March, 1840, when he made his tender, without paying all that was due upon the first and second notes. And it was necessary also that he should pay the amount of the third note, which became due April 1, 1839, within the year following that date, in order to prevent a foreclosure. Where the entry is after condition broken, whether it is made under process of law, or without such process, peaceable and continued actual possession for the space of one year, without payment or tender of the money due, bars the right of redemption. N. H. Laws [Ed. 1830] 486. The same principle must be applied where an entry is made after breach of one of several conditions, and subsequent to the entry the breach of another condition occurs. If peaceable possession is continued, and no performance, or tender of performance, of such other condition, is made within a year after the breach of it, the mortgage will be foreclosed, notwithstanding a tender of performance upon the condition which was broken before the entry. The mortgagee in such case holds for the breach of all conditions which occur during the time of his possession, (it having been taken after a breach, and for the purpose of foreclosing,) unless there is something to rebut or control such a result.

The statute of July 4, 1834, enacts that no possession by a mortgagee, or his assigns, shall bar or foreclose the right to redeem against any person but the mortgager and liis heirs, unless the person in possession for the purpose of foreclosing shall, at least six months before the right to redeem would be foreclosed, publish a notice in some newspaper in the manner there prescribed. But there is a proviso that the act shall not extend to or in any way affect the foreclosure of a right of redemption under a possession obtained by a suit at law. The possession in this case was obtained by a suit at law, and it was not therefore necessary for Tyler, or the plaintiff, to advertise, the case being within the proviso. It is unnecessary, therefore, to consider whether that statute is applicable to a case where the mortgagee, or his assignee, enters without suit, after condition broken, and the assignee of the mortgagee becomes a tenant to him, or whether such assignee having actual notice, and himself holding the possession, under the mortgage title, as tenant, will be foreclosed without an advertisement. It is clear enough that an advertisement might not add much to his knowledge upon the subject, but it is by no means clear that it is to be dispensed with in such case.

Judgment for the plaintiff.