20 N.H. 41 | Superior Court of New Hampshire | 1849
This is an action of trespass for breaking the plaintiffs’ close, and cutting away their mill-dam, and doing other injuries. The plaintiffs’ evidence clearly shows that they were in possession of the premises, and that the defendant cut down the dam. Their possession entitles them to sustain their action, unless the defendant can justify his act by showing that he had a title to the premises. What title does he show ?
Fisher, who was said to hold under Wentworth, the original proprietor, in December, 1822, released his right to Mathes. Mathes on the same day mortgaged the
On the back of the assignment is entered an acknowledgment by Mathes, of the surrender of the premises to Carter, for condition broken. This bears date the 1st of September, 1832. In 1836 Carter conveyed to Thurston, and the same year Thurston conveyed to the defendant.
Carter, at the time he conveyed to Thurston, was a mortgagee, having taken the mortgage which had been made by Mathes to Pierce, by the assignment executed by the latter. There is no evidence of a foreclosure; there is no evidence of his having taken possession of the mortgaged premises. Mathes, on the 1st day of September, 1832, by writing, upon the deed of assignment, acknowledged that he had surrendered the premises to Carter for breach of the condition in the mortgage; but Carter made no entry. The acknowledgment of a surrender of the premises by Mathes is not equivalent to an entry by Carter. It is no evidence that Mathes held from that time as the tenant of Cartel’, even if there were evidence that Mathes was in possession at the time.
In the conveyance from Carter to Thurston the debt was not assigned, and the deed consequently passed nothing. Taylor v. Dearborn, decided in Rockingham in July, 1846 ; Smith v. Smith, 15 N. H. 55 ; Ellison v. Daniels, 11 N. H. 274 ; Bell v. Morse, 6 N. H. 205.
It would have been otherwise if there had been an entry by Carter under his mortgage; for we have held that a mortgagee in possession may, by his deed in common form, pass the land without also assigning the debt, so far as to give his grantee a right to occupy, and to defend Ms possession against all who do not exhibit a better title.
This renders it unnecessary to consider a number of questions presented in the case, that are important in themselves, and have been discussed in argument. The result is, there must be
Judgment on the verdict.
