Gilman v. Hidden

5 N.H. 30 | Superior Court of New Hampshire | 1829

By the court.

The question in this case is, whether the right in equity to redeem the land was foreclosed before the tender was made by the demandant ?

The right to redeem, which was created by the contract between the mortgagor and the mortgagee was lost on the 2d May, 1823.

But the statute of February 16, 1791, gives a right to redeem after the condition is broken by payment, or performance of the condition &c. u provided such payment or performance, &e. shall be made or tender thereof made to the mortgagee, &c. within one year after such mortgagee ⅜¾, shall have entered into and have taken peaceable possession of such real estate for the condition broken, or within one year after such person shall hove been in peaceable and continued actual possesion of such estate after the condition broken, whether such possession in either case shall have been gained by process of law or by peaceable entry without such process,” and the real question between the parties is, whether the right given by the statute must in law be considered upon the facts stated in the case as foreclosed ? The decision of this question depends upon the construction which is to be given to the statute.

We have lately had this clause in the statute under consideration in the case of Kittredge v. Bellows. In that case we were of opinion that if the mortgagor do not redeem within one year after the mortgagee has entered and taken possession for condition broken, openly and publicly declaring the purpose for which the entry is made, the right to redeem is lost. And we were further of opinion that if the mortgagee at any time after the 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. We still retain the same opinion. The language of the statute seems to us to be clear and free from all doubt.

: In this case it is not disputed that the tenant had actual and continued peaceable possession of the land for more than a year after the condition was broken before the tender was made. And the circumstance that the mortgagor also lived upon the land does not seem to be material, because he was apprised that the tenant was holding the land, after condition broken, with a view to foreclose the right to redeem. If then there was no collusion between the parties to the mortgage with a view to defraud the creditors, the right to redeem is forever gone. We are therefore of opinion, that the verdict must be set aside and

J.1 new trial granted.