Johnson v. Brown

31 N.H. 405 | Superior Court of New Hampshire | 1855

Eastman, J.

When a mortgage is given to secure several notes or demands, it is an incumbrance upon the land until all are paid. It is a security for all and each of the notes, in whosesoever hands they may be. This is the doctrine of Page v. Pierce, 6 Foster’s Rep. 317, where the cases upon the subject are collected and well considered. Tenney, then, being the owner and holder of one of the notes secured by the mortgage upon which this action was founded, had a right to institute proceedings for the satisfaction of his debt. And he had the right to use the name of Johnson, the holder of the other notes, for this purpose, upon giving him proper security for costs. Johnson had become interested with Tenney in the mortgage. There was a quasi partnership between them in the security for their debts.

Whether Tenney could have maintained an action on the mortgage in his own name alone, the other notes remaining unpaid, is not necessary to be decided. It is clear that were his the only note unsatisfied, he might have sustained a suit in his own name, without joining others; King v. Harrington, 2 Aiken 33; Page v. Pierce, 6 Foster’s Rep. 317. The other notes being paid, he would be the only person interested in the mortgage.

But it would seem that where two or more are interested as mortgagees or assignees of a mortgage, it is necessary that all shall be joined in a bill to foreclose. It Was so held in Palmer v. Carlisle, 1 Simons & Stuart 433, and in Lowe v. Morgan, 1 Brockenborough’s C. C. Rep. 268. The contract of the mortgager is entire to pay the mortgagee the debt or debts secured by the mortgage, and so long as the debt or debts remain unpaid, the assignee or assignees would seem to stand in the same legal position as the mortgagee. But still, a division of interest in the debts secured may give the different assignees a right to proceed at law, in their several names, to secure their several interests; in which case the theory would have to be that a mortgage, to secure several demands, is in the nature of several mortgages. But we pass this point at present.

There is no difficulty in all being joined, as all have a joint interest in the security ; and the position of this case is such that all must be joined, because the suit having been prosecuted against the consent of Johnson, and he being a nominal plaintiff, so far as Tenney is concerned, if his name should be struck from the record, there would be no plaintiff in court, and, consequently, no amendment could be made by permitting Tenney to join as plaintiff. There would be nothing to amend by. But the amendment was admissible under the general provisions of the statute. Comp. Stat. ch. 198, § 18.

The mortgage was, under the circumstances, well enough proved. Tenney did all he could to procure the original, and failing in that, he obtained the best secondary evidence within his power. His affidavit shows the original mortgage to have been in the hands of Johnson, and a refusal by him to let Tenney have it. The case finds the mortgage to have been executed to Kidder, and transferred to Johnson.

In Poignard v. Smith, 8 Pick. 272, which was a writ of entry, upon a mortgage brought by the assignee of a mortgagee, it was held that, in such an action, if diligent search and inquiry are made for the mortgage deed, by the demandant, and it cannot be found, he may give a copy from the registry in evidence. In the course of the opinion, Parker, C. J., says, “ that there was, in fact, such a deed, cannot be doubted, for the registered copy is sufficient evidence of the fact.” And in Southerin v. Mendum, 5 N. H. Rep. 420, it was decided that where a deed of land is lost, or out of the reach of a party who claims under it, a copy from the register’s office may be used as evidence. See also Bowman v. Sanborn, 5 Foster’s Rep. 113.

Here was a mortgage executed from Brown to Kidder, to secure the payment of three notes of even date; one of these notes was transferred to Tenney, the other two to Johnson, and the mortgage also transferred to Johnson. These are facts proved upon the trial. Tenney then called upon Johnson, who said he had the mortgage, but refused to let him have any use or control over it, and, therefore, Tenney was permitted to use a copy from the registry, and, we think, rightly so.

The judgment must be taken upon the whole land. Until a foreclosure is had upon a mortgage, or the title to the land has, by process of law; become vested in the mortgagee or mortgagees, or their assignees, their interest is one of security and not such as to make them tenants in common of the land. The mortgage is upon the whole premises, for the security of every part of the debt named in the condition, and the judgment must go upon the whole. If there are several demands, as in this case, each demand is a claim upon the entire property as against the mortgager. He has mortgaged the whole premises to secure the payment of all the notes and of each note ; but after the title of the property has passed from him by due process of law, the assignees become the owners of the land, in proportion to their respective debts, and must adjust the matter between themselves accordingly.

The verdict in the case was correctly taken for the whole of the demanded premises, in the name of both plaintiffs; and, according to the views expressed, there must be

Judgment on the verdict.