Lyman v. Hibbard

18 N.H. 233 | Superior Court of New Hampshire | 1846

Parker, C. J.

This action cannot be maintained consistently with the views repeatedly taken h,ere on the nature of a mortgage, and the rights of a mortgagee.

We have held that the mortgagee is riot to be regarded as the owner of the land, except at his election, and for the preservation of his rights; that the mortgage is a mere security, or charge upon the land, but not a title, until the mortgagee sees fit to assert his rights as the owner of the estate. This doctrine is laid down in Southerin v. Mendum, 5 N. H. Rep. 420; and it is stated and explained at large in Smith v. Moore, 11 N. H. Rep. 55, and in Rigney v. Lovejoy, 13 N. H. Rep. 247.

The defendant, having never entered or asserted any title, cannot be treated as the tenant of the freehold, or in fact as having any possession, and the objection is well taken by the special plea of non tenure, in this case, which will not preclude him from hereafter asserting title under his mortgage. A disclaimer would not be a proper pleading for him.

Writ abated.