11 N.H. 40 | Superior Court of New Hampshire | 1840
If this case were to be decided independently of the statute and decisions of this state, and upon general principles, recognized as applicable to cases of this character, we should undoubtedly hold that this plaintiff is entitled to redeem. The doctrine as to the necessity of notice by the party attempting to foreclose, to all those whose interests may be affected by the foreclosure, is well settled and acted upon elsewhere.
All incumbrancers existing at the commencement of the suit, are entitled to become parties ; for they have an interest to be affected, and ought to have an opportunity of paying off the prior incumbrances. The injustice that would be produced if they were to lose their rights because they are not made parties, is very apparent. The rule, therefore, has been well settled, and uniformly acted upon, that the subsequent incumbrancers must be parties ; and, if omitted, the decree will not bind then4 rights. Haines vs. Beach, 3 Johns. Ch. R. 459; 5 Conn. R. 531.
But we are of opinion that the question, whether the proceedings of the defendants have foreclosed the right to redeem the land, is settled conclusively by the statute of this state relating to mortgages. The act provides, that if the mortgagee, &c., shall, after the condition is broken, enter peaceably into the mortgaged premises, either under process of law, or without such process, and shall remain in the
A construction has been given to this statute in the case of Kittredge vs. Bellows, 4 N. H. Rep. 424. It is there said, that “ the mortgagee may take possession of the land, and remain in the peaceable and continued actual possession for a year after condition broken ; and if the mortgager do not redeem within the year, his right is foreclosed. It is immaterial whether the mortgagee in this case obtain possession by process, or by entry without process. Nor is it in any ease necessary to give notice to the mortgager or his assigns, of such possession. Rut they are bound to take notice of it, or abide the consequences.”
In the case of Gilman vs. Hidden, 5 N. H. Rep. 30, the case of Kittredge vs. Bellows is commented on, and approved ; and it is said, “ if the mortgagee, at any time after condition broken, remain in the peaceable and continued actual possession for a year, this is, under the statute, a bar to the right to redeem. The language of the statute seems to us to be clear and free from doubt.”
In this case the defendants had been in the peaceable and actual possession required by the statute, nearly three and a half years before the tender by the plaintiff and the demand by him for an account of the rents and profits. We are, therefore, of opinion that the plaintiff has no right in equity to redeem the premises.
Bill dismissed.
