Kittredge v. Bellows

4 N.H. 424 | Superior Court of New Hampshire | 1828

Richardson, C. J.

delivered the opinion of the court.

It is said on behalf of the defendant, in this case, that the action cannot be maintained, because the return of the officer is conclusive evidence that a copy of the writ was left with the town clerk on the 27th January.

It is by no means clear, if we should hold that the return has the effect for which counsel contend, that it would be an answer to this action. For the case states, that Heaton made the first attachment. And if he did not perfect his attachment immediately on the same day, by leaving a copy of the writ with the town clerk, so that by his neglect in this respect, others were enabled to gain the priority for their attachments, we are not prepared to say that this was not negligence, for which this defendant may be liable.

But it is unnecessary to decide this point at the present time, because we are of opinion that Heaton’s return does not furnish a proper foundation for an.intendment that the copy was left on the 27th January. We entertain no doubt, that where all the doings of a sheriff, in a particular transaction, may, by relation, become valid from the day when he began to act, there, if he return several acts under a particular date, the court will intend that all the acts were done upon the clay stated. But where the sheriff returns several distinct acts under one date, if the precise time when one of the acts so returned was done, becomes material, so that the principle of relation cannot apply, the court will not intend that such act was done on the day stated, unless it appear, that from its nature, it must have been the first act done. We apply this principle in the case before us the more readily, because the return of the officer is amendable, and if the truth of the case can avail the defendant, it is within his reach.

Upon looking to H eaton’s return upon the plaintiff’s writ against Philips, we find that all is stated to have, been done under the date of January 21, But the leaving of a copy of the writ with the town clerk was not the first act to be done by the officer. And in a ease where the minute, when the copy was left, might be material, we think we are not permitted to make any intendment from this general return.

The effect of a return by the officer of the minute when a copy was left with the town clerk, must be settled by a sound construction of the statute which has made the leaving of a copy of the writ with the clerk an essential part of the attachment. But that question need not now be settled. This return is not of that description. We shall therefore look, not to the return, but to the facts stated in the case, that although Heaton made the attachment by virtue of the plaintiff’s writ, on the 27th January, he did not leave the copy until the 28th, whereby the priority of the plaintiff’s attachment was lost, and on this ground our decision.

It is clear, then, that the plaintiff has lost by the negligence of Heaton, the benefit of having the first attachment on the land, and is entitled to recover the amount of the damage he has sustained by reason of that negligence.

But it is said he has sustained no damage, because the right in equity to redeem the land, which he attached, was not liable to be attached. As the mortgages were made prior to the statute of July 3, 1822, the right to redeem the land could not be attached under that statute, which is in express terms confined to mortgages subse-qnently made. The question then is, did the statute of February 15, 1791, authorise the attachment of such a right ? This question was fully considered in the case of Pritchard v. Brown, where we came to the conclusion, that previously to the statute of July 3, 1822, a right to redeem land mortgaged was liable to attachment. As the grounds and reasons of the opinion we formed are stated in that ease, we shall not now repeat them, and it isonly necessary to;say, on this occasion, that we still remain of the same opinion.

But it is further contended, in this case, that the right to redeem the land is not foreclosed by the proceedings of Hooper ; that the plaintiff may still redeem ; and thus secure the amount of his judgment against Philips ; and that therefore he has sustained no damage by the negligence of which he complains. It therefore becomes necessary to determine, whether Hooper’s proceedings have foreclosed the right to redeem the land.

The decision of this question, depends entirely upon the construction which is to be given to the provisions of the statute of this state, relating to mortgages.

That statute, after declaring that all real estate mortgaged may be redeemed, has this proviso. “ Provided such payment or performance, &e. shall be made within one year after such mortgagee, &c. shall have entered into and have taken peaceable possession of such real estate for condition broken ; or within one year after such person shall have been in peaceable and continued actual possession of such estate, after condition broken, whether such possession in either case shall have been gained by process of law, or by peaceable entry without such process.” This statute gives a right to redeem to the mortgagor in cases, where by the terms of the contract he has no such right. But the exercise of this right is so limited by the proviso, that it seems to afford to the mortgagee two modes of foreclosing the right to redeem.

In the first place, 1he mortgagee may eider and lake peaceable possession, for condition broken, and if the mortgagor do not redeem within one year from the time of such entry, his right to redeem is gone forever. The entry for this purpose may be by process of law, or without such process. When the entry is without process, it must be made openly and publiekly, and the purpose for which it is made must be openly and publiekly declared. And even when the entry is made by'proeess, if the process has not issued in a suit against him who has the right to redeem, it ought to be made in a manner equally open and public, and the purpose of the entry should be declared. And perhaps there may be cases, in which notice of the entry ought to be given to the mortgagor or his assigns.

In the next place, the mortgagee may take possession of the land and remain in the peaceable and continued actual possession for a year after condition broken ; and if the mortgagor do not redeem within the year, his right is foreclosed. It is immaterial, whether the mortgagee in this case obtain possession by process, or by entry, without process. Nor is it in any case necessary to give notice to the mortgagor, or his assigns, of such possession. But they are bound to take notice of it, or abide the consequences.

In this case, the entry of Hooper, was open and public under process, and he declared that he entered for the purpose of foreclosing the right to redeem. Whether, under the circumstances of this case, the right of the mortgagor is barred by his neglect to redeem within a year after that entry, need not be decided in this case ; because we are clearly of opinion, that, as Hooper remained in the peaceable and continued actual possession of the land, by his tenant, for a year after the condition was broken, the right to redeem was lost by the neglect of those, who had it, to exercise it within that year.

It has been urged, that notwithstanding the plaintiff 1 a i lost the priority of his attachment, he might still have redeemed. But the answer which has been given to this By the plaintiff’s counsel is decisive. A redemption of the land by the plaintiff would have been perfectly idle, while the previous attachments remained.

We are, therefore of opinion, that the verdict ought to be set aside, and a verdict entered for the plaintiff according to the agreement of the parties.

Judgment for the plaintiff.