59 N.H. 476 | N.H. | 1879
The defendant contends that the mortgage debt has been paid, and therefore this action cannot be maintained; and it appears that Dearborn, the mortgagor, paid the amount of the notes secured by the mortgage to Stevens, the mortgagee, about three months after the notes and mortgage were given. By this payment, the notes and mortgage would have been discharged had Stevens then been the holder of them; but he was neither the holder nor the owner at the time of the payment by Dearborn. Nearly three months previous, and two days after the notes and mortgage were given, Stevens had parted with his interest in them, and had assigned and delivered the notes and mortgage to the plaintiffs of record to hold as collateral security for a debt against Gardner. The consideration of this transfer was the discharge by Gardner of a prior mortgage upon the same premises to secure the sum of $879. By this transaction, entered into in good faith by Mead, Mason Co. and Gardner before the maturity of the note, Stevens, for a valuable and adequate consideration paid by Gardner, parted with the possession and ownership of the notes and mortgage, and they were delivered to the plaintiffs to hold as collateral security for the debt of Gardner, and upon payment of that debt they would hold them as trustee for Gardner, by whom the consideration for the transfer was paid.
Upon these facts the subsequent payment by Dearborn to Stevens could not affect the validity of the mortgage, or the rights which Mead, Mason Co. and Gardner had acquired under it, the payment having been made without their knowledge or consent, and the mortgage is still a subsisting lien upon the land. It is the defendant's misfortune that Dearborn did not insist upon his right to have the notes when he paid them. Strafford v. Welch, ante, 46.
If these views are correct, this action can be maintained; and it is immaterial whether the claim of Mead, Mason Co. against Gardner has been paid by foreclosure of the mortgage upon the Concord land. If it has not been paid, the action can be maintained for the benefit of Mead, Mason
Co. If it has been paid, the action can be maintained for the benefit of Gardner. As between the plaintiffs and the defendant, it is of no consequence to whom the amount due upon the mortgage in suit equitably belongs. If it has not been paid, it is an incumbrance upon the property, and gives validity to the legal title of the plaintiffs. Upon that title judgment must be rendered in this suit. Whether the plaintiffs will hold the avails of the judgment for their own use, or for the use of other parties equitably entitled, does not concern the defendant. Sanderson v. Edwards,
Judgment for the plaintiffs.
ALLEN, J., did not sit: the others concurred.
