Sheafe v. Gerry

| Superior Court of New Hampshire | Jul 15, 1846

Gilchrist, J.

The statute of June 16,1791, (Laws of N. H. 164) provides that no person or body corporate, &c., “ shall sue for, have or maintain any action for any lands, tenements or hereditaments upon his or their own seizin or possession therein, above thirty years next before the test of the same writ.”

But the act of December 30, 1799, passed in amendment, excepts from its operation actions upon notes secured by mortgage, and upon mortgages where no note is given. Laws of N. H. 168.

A further act, in amendment of that of 1791, was passed June 19, 1805, by which actions for the possession of lands were required, after the first day of January, 1808, to be commenced within twenty years from the day on which the demandant should have been last seized.

The act of June 30, 1825, entitled An act for the limitation of actions, and preventing vexatious suits, contains (sec. 4), the substance of that part of the act of December 30, 1799, which has been cited, and provides that “the aforesaid act shall not bar any action” upon notes and mortgages, such as are described in that of December 30, 1799.

This is an action brought by the executor of a mortgagee, upon a mortgage in which a note was given, and therefore is not within the letter of exception. It is an action for the recovery of the possession of land, and so falls within the purview of the letter of the act of June 19, 1805.

If, therefore, the plaintiff, or those under whom he claims, have not been seized within twenty years next before the commencement of the action, the statute bar applies.

In equity, the mortgagor is considered to be the owner of the land, and the doctrine of equity has been fully adopted and recognized by the court in this State.

But in contemplation of law, and with a view to the protection of the rights of the mortgagee by action, he is deemed to be the owner, and the mortgagor as being in possession under him. Pow. on Mort., chap. 7; Pettingill v. Evans, 5 N.H. 54" court="None" date_filed="1829-09-15" href="https://app.midpage.ai/document/pettengill-v-evans-8503676?utm_source=webapp" opinion_id="8503676">5 N. H. Rep. 54; Smith v. Moore, 11 do. 55; Ellison v. Daniels, 11 do. 274.

In the absence, therefore, of proof that the possession of the mortgagor has become hostile to that of the mortgagee, the seizin of the latter is preserved by the permissive occupation of the former; and no length of time can constitute an effectual bar to liis entry, or to the maintenance of any action that presupposes one.

Until the conveyance of the premises by the mortgagor to Evans, on the 21st day of April, 1833, the case furnishes no evidence of an adverse occupancy ; or, in other words, of the disseizin of the plaintiff.

A payment made on the 20th day of February, 1833, repels the presumption of the extinction of the mortgage by payment, that is said to arise after the lapse of twenty years, without any such recognition by the mortgagor of the relation created by the mortgage.

The case, therefore, is not one to which the statute of limitations can apply, and it was so held in Howard, v. Hildreth, ante 105.

The conditional part of the mortgage deed describes the note as of the date of May 25,1820, for three hundred and sixty dollars, and interest. The note exhibited corresponded in all particulars with that description, except that it indicated the times when the money should be paid, and contained an agreement to pay the interest annually.

There is no discrepancy between the note and the description that proves the latter to be false in any respect. The note was of the date and for the sum named in the description, and bore interest accordingly. The description, however, omits some particulars.

This is not an objection generally to a description, unless in circumstances that raise a doubt as to which of several things coming within its terms is intended by it. Here that state of things does not exist.

There is nothing in the nature and objects of amortgage that requires that the security taken for the debt should be accurately described, as in pleading. All that seems to be necessary is, to identify the debt; and that was not required to be done in the body of the deed itself, by the law as it stood when this mortgage was made.

Such was the doctrine of Robertson v. Stark, 15 N. H. Rep. 112, in which the description was more imperfect than in the present case.

The exceptions must, therefore, be overruled, and there must be

Judgment on the verdict.