Drew v. Rust

36 N.H. 335 | N.H. | 1858

Bell, J.

Upon the facts stated in this case, the defendants held, on the 30th of July, 1852, a mortgage to George Rust for $250 principal, and a mortgage to both for $1,189, and a quitclaim from the mortgagor of his right to redeem, made on that date.

These conveyances gave to the defendants a complete title to the whole property. No fraud, nor any defect of either of these conveyances is suggested, and the plaintiff had no interest which gave him any right to object, if there were.

J. Parker and another, on the 6th of August, 1852, attached Boyle’s equity to redeem the property, and recovered judgment, and on their execution this right was sold to the plaintiffs, and conveyed to him by the officer.

Upon the case thus far the plaintiffs acquired no interest by this sale and deed, because Boyle, the mortgagor, had no interest liable to attachment. He had, previous to the suit, released all his interest.

There is no distinct statement that Parker and another had any such debt as entitled them to raise any question as to the good faith of Boyle’s release to the defendants. If they had such debt, as no consideration for the quitclaim deed appears, this deed would be inoperative as to them.

But the case is complicated by the acts of the defendants themselves. They were sureties of Boyle to Parker and another, for $1,000, and their mortgage from Boyle for $1,189 was given to secure that liability in part; and in September, 1853, they purchased of Parker and another their judgment, and themselves seized and caused to be sold the equity of redemption, “ under all the mortgages given by him to them upon these premises,” upon an execution issued upon that judgment.

Situated as they then were, they had no interest to set up their quitclaim deed against this execution, and the fact of their agency in the seizure and sale of this equity of redemption might be properly considered, in connection with the other facts stated, as a distinct admission on their part that the quitclaim of Boyle was invalid as against Parker and another’s debt, upon which all the world would have the right to act in bidding at the sale.

If an owner or claimant of property actively persuades or encourages another person, who is ignorant of his right, to purchase the property, or any right or interest in it, he will not be permitted to claim the property against the purchaser. Wells v. Pierce, 27 N. H. (7 Foster) 511, and cases there cited. And in that case it was held, that if a party take any active part in the sale of property, without making known his claim, it is a fraud which will estop him to claim his legal rights. Such is the position of these defendants as to the release by Boyle of his right of redemption. They owned Parker and another’s' judgment, they took out the execution, and controlled it. The right of Boyle to redeem was seized, advertised, and sold under their direction, as it well might be if Boyle’s quitclaim was inoperative as to that claim, and they were silent as to their right or claim under that release. It would be a fraud in them, under such circumstances, now to deny that Boyle had the right to redeem what was then sold. They are estopped to deny it.

But this fraud, as it is and might he, and consequent estoppel, extended only to this equity of redemption. The right sold was to redeem all the mortgages made to the defendants on this property, and as to these mortgages there was no concealment and no fraud. The plaintiffs knew at the time of their purchase of the defendants’ mortgage of $1,189, and purchased in terms the right of redeeming it. They suspected it to he fraudulent, hut if this was so the fact was immaterial. The purchaser at a sheriff’s sale of an equity of redemption is estopped to deny or impeach the mortgage described or referred to in the officer’s return and deed, as the mortgage of which the right to redeem is sold, upon the ground that it was made in fraud of creditors, Flanders v. Jones, 30 N. H. (10 Foster) 154, and Russell v. Dudley, 3 Met. 147, there cited.

The mortgage to George Rust may he regarded as standing in the same position as to these defendants as if it was made to a stranger, and had been paid to him. Though the payment was indorsed upon the mortgage, in full satisfaction of it, yet it is settled that if it is necessary, to prevent injustice, the payment will be held to be a purchase in favor of a party who had a right to require an assignment when he made the payment, and the mortgage, as between the parties, will be held a subsisting security. Robinson v. Leavitt, 7 N. H. 99 ; Rigney v. Lovejoy, 13 N. H. 252; Heath v. West, 26 N. H. (6 Foster) 191.

That is the condition of the present case, so far as we can judge from the statement. The plaintiff will lose the money he paid George Rust, unless he can recover it in this action. He claims nothing but in the capacity of mortgagee, and he is entitled as such to a conditional judgment, and to a writ of possession, unless tine defendants, within sixty days, pay the amount due on the mortgage to George Rust.

As it was the duty of the defendants to cause the execution to be duly returned, they do not seem to be in a position to object because that does not appear to have been done.