Lamprey v. Nudd

29 N.H. 299 | Superior Court of New Hampshire | 1854

Belu, J.

It must be regarded as settled that the judgment of a court of competent jurisdiction over the subject-matter of an action and over the parties, upon any point directly put in issue, is conclusive upon them, and upon all who have derived their rights from them, until it has been reversed or set aside, by appeal or upon error, or other proceeding instituted for the purpose of its reversal. So long as it remains in force and not annulled or reversed, it is not liable to be impeached or questioned, when it is offered in evidence, or otherwise relied upon in any collateral proceeding, or in any proceeding not expressly devised by the law for its revision. Gorrill v. Whittier, 3 N. H. Rep. 265; Smith v. Knowlton, 11 N. H. Rep. 191; King v. Chase 15 N. H. Rep. 1; Morse v. Presby, 5 Foster’s Rep. 299.

The fact that a person against whom a suit is commenced is, at the service of the process upon him, a person of insane mind, and that he so continued until judgment rendered, and that he appeared in person or by attorney, or not at all, is good cause to reverse the judgment upon a writ of error; though for reasons which we think inapplicable and without force here, and, perhaps, little creditable to the jurisprudence of an enlightened country, it seems not to have been so held in England. But, in such case, the defect in the proceedings renders them only voidable, and not void. Allison v. Taylor, 6 Dana 87; Robertson v. Lain, 19 Wend. 649.

Indeed, there are few defects in the proceedings of a court of justice which render the proceedings void, in the strict sense of that word, where the court has jurisdiction of the subject-matter of the suit. State v. Richmond, 6 Foster’s Rep. 232.

In the present case it appears that the mortgagee, at the date of his conveyance to Greenleaf and Leavitt, under which the defendant claims, had recovered a judgment against his mortgagor, had taken possession under his writ of possession, and had been in possession by his tenant for ten months. Under these circumstances, we think there can be no doubt that the deed of the mortgagee was entirely sufficient to convey his mortgage interest, though it did not in terms purport to convey the debt. Hunt v. Hunt, 14 Pick. 374: Freeman v. McGaw, 15 Pick. 82; Bell v. Morse, 6 N. H. Rep. 205; Ellison v. Daniels, 11 N. H. Rep. 284; Smith v. Smith, 15 N. H. Rep. 55.

It is every where held, upon the most satisfactory reasons, that a deed, made by a mortgagee of the property mortgaged, passed no interest, unless it is accompanied by a transfer of the mortgage debt. And it has been held here that a deed of mortgaged property before possession taken, conveys no interest, though the grantor holds the securities for the mortgaged debt, and has no other interest in the property he assumes to convey. Our statute (Rev. Stat. ch. 129, § 6,) provides “ that a conveyance made by any person having a limited interest in any estate purporting to convey a greater interest in any estate than he possessed or could lawfully convey, shall pass to the grantee all the estate which he could lawfully conveyand it might be doubted if the cause of equity and justice would be sacrificed, if it were held that the deed of a mortgagee, under such circumstances, would pass the equitable interest of the mortgagee, including his mortgage, though not specifically referred to; ut res magis valeat quam pereat, since otherwise the deed must be entirely inoperative; but it is not necessary, in this case, to consider this question further, since none of the decisions extend, in terms, to the case of a mortgagee in possession ; and the case of Smith v. Smith, 15 N. H. Rep. 55, expressly excepts, them. In that case, the mortgagee was put in possession, by virtue of a writ of possession, before he executed his deed; and Gilchrist, C. J., says : “ He then being in possession by deed of warranty in the ordinary form, conveyed the premises to the tenant. He was, then, if the notes had not been paid, a mortgagee in possession, by virtue of a process issued by a court of competent jurisdiction. He had a right to retain the possession as against the mortgager, and this right might be conveyed, so that his grantee would stand-in his place, and would hold whatever right of possession was owned by his grant- or.” In respect to the possession under legal process, the present case stands on the same ground as the case of Smith v. Smith.

It can make no difference, in this case, that the judgment in the action upon the mortgage may be liable to be reversed on error, and that the further proceedings upon the foreclosure are voidable, since they all remain valid and effectual, until they are duly avoided by the proper proceedings for that purpose. Smith v. Smith, before cited.

The value of the property was a matter entirely immaterial, since none of the rights of the parties, legal or equitable, depended.upon that question. The evidence on that subject was, of course, properly rejected.

If the plaintiff, by reason of his insanity at the date of the mortgage, and of the proceedings adopted to foreclose it, has rights not yet barred by the lapse of time, he may probably obtain redress by proper- proceedings on the equity side of this court, which has ample powers in cases relating to the redemption and foreclosure of mortgages.

In the present action, there must be

Judgment on the verdict.