12 N.H. 558 | Superior Court of New Hampshire | 1842
There is a principle in equity, that a surety is entitled to the benefit of any security which the creditor may have taken from the principal.
Whether Chaplin could have availed himself of this principle, and have held under the mortgage to Mrs. Robeson, is a question which it does not seem necessary to settle in this case. He paid the notes, and discharged the debt, without obtaining the mortgage, and without making any claim to the benefit of it, so far as appears from this case. For the balance which he paid, he has made an attachment, and is secured. There is no reason for thrusting an interest upon him, which he has never claimed.
In fact, it may admit of doubt whether he would be entitled to the benefit of such a principle against Tyler, a bona fide purchaser, or against the plaintiffs, as assignees of Tyler’s mortgage, unless they can be made chargeable with notice that Chaplin was a surety, and therefore took subject to his rights as such. The defendant is in no way connected with Chaplin, nor have any rights of the latter been urged in the argument as sustaining the defence.
But it is contended that the mortgage to Mrs. Robeson was in force, as a valid title to the land, at the time when the timber was cut; and that if there was any right of action for the cutting, it was in her, and not in the plaintiffs ; or, at least, that by reason of that mortgage, and the actual possession of the defendant, the plaintiffs, who were second mortgagees, had neither the actual nor constructive possession, and cannot therefore maintain this action.
We are of opinion that this objection cannot avail.
A mortgage (as was stated in the case Smith vs. Moore,) is regarded as a mere security for the debt, or as passing the legal estate, whichever may be necessary for the preservation of the rights of the mortgagee. The mortgagee has the legal estate for the purpose of all lawful protection of his interests.
Tested by this rule, Mrs. Robeson is not in this case to be regarded as having the legal estate, at the time when this timber was cut, notwithstanding her mortgage was then in existence, because that is not necessary, in order to the protection of her interests. Her mortgage has been satisfied ; and, so far as appears, she made no claim on account of this act, as injurious to her. She has no interest to be protected, and no reason to make any objection, nor can she now maintain any action. There is no fair purpose to be answered by considering the legal estate in her, as the result would only be to defeat a right of action which would otherwise lawfully exist in the plaintiffs, and this without any benefit to her.
Tyler, who made the second mortgage, had no more right
This view of the matter does not prejudice any right of the defendant. He stands confessedly in the place of the mortgager, and had no right, as against either mortgagee, to do any act of waste. As against either mortgage, standing alone, an act of waste, without assent, would be a wrong, for which trespass might be maintained.
The first mortgage having been removed, without any entry by the mortgagee, the defendant is relieved from any danger of a claim upon that mortgage, and the case therefore now stands as if that mortgage had never existed. To interpose that mortgage, as a conveyance of the legal estate, would be to interpose a technical objection for the purpose of working injustice, and would enable a mortgager to impair the security of the second mortgagee, with impunity, unless he were restrained by injunction.
Judgment for the plaintiffs.