46 A. 1054 | N.H. | 1899
The mortgage to a trustee, to secure the payment of bonds to be thereafter issued, was valid, and became effective as the bonds were disposed of. Richards v. Railroad,
The discharge of the prior mortgage and the taking of the later one in its stead did not affect the rights of the parties. A discharge of a mortgage is always treated as an assignment when justice requires such a course for the protection of equitable rights. Holt v. Baker,
The defence that the mortgage to secure the last issue of bonds was ultra rites, because the amount of the issue was more than one half the cost of the Light Company's property, is also set up. The company could not avail itself of this defence, for it has received and now retains the proceeds of the contract. M. L. Railroad v. Railroad,
The plaintiffs are entitled to an equitable lien upon the property to the extent of $14,100 as against the Davis Farnum Company, and $19,100 as against Kendall. Such order will be made at the trial term as will protect their equitable as well as the defendants' legal rights in the premises.
Case discharged.
PARSONS, J., did not sit: the others concurred. *121