10 A. 704 | N.H. | 1887
Upon the execution of the mortgage, the seizin as well as the title of the demanded premises vested in the demandant's intestate, who acquired and remained in constructive possession of the same until his death, unless the defendant's occupation assumed an adverse character by some unequivocal act distinctly brought to his knowledge. After the title became vested in the mortgagee, the mortgagor's possession was that of a tenant at will or at sufferance, or analogous to it; and the mortgagee's right to recover possession first accrued when the demandant, as his legal representative, by bringing this suit, elected to treat the defendant's possession as a disseizin. Howard v. Hildreth,
The defendant, by pleading nul disseizin, admitted that he was in possession of the demanded premises, claiming a freehold, and denied the demandant's right to recover any part of the premises. Mills v. Peirce,
The demandant's testimony as to the conversation with Eastman in 1869 was competent to show that his mortgage was not barred by the statute of limitations. Hodgdon v. Shannon,
The deed of the defendant to S. M. D. Perkins in 1882 may be laid out of the case as immaterial.
As there was evidence from which the jury might find for the demandant upon both issues, and the defendant did not desire to submit any question of fact to them, the verdict was properly ordered for the demandant.
Exceptions overruled.
CLARK, J., did not sit: the others concurred.