1 N.H. 332 | Superior Court of New Hampshire | 1818
The opinion of the court was delivered by
At common law, when lands were granted upon condition that the conveyance should be void upon the payment oí a certain sum at a particular time by
But by the first section of our statute: of February 16, 1791,
= On .the-part 'of the tenants in this case it , has been urged that the words,utterly void,’’ in the statute,; are'not to be understoodditerally, but are.to be construed in a restricted sense, .to mean that, the deed shall be: so far void* upon; payment' or tender of payment after condition broken, as to entitle the mortgagor to a release, &co; because if the deed is to be considered in suchucase as absolutely void, the .provisions, of the statute relative to.a. release are wholly unnecessary* the land being already upon this construction discharged from the incumbrance. To this it may be answered, that although the deed be absolutely void, and the land discharged, still the provisions of the act of 1791, relative to a release, and the. provisions of the statute of 1795, relative to a decree of satisfaction upon petition, are not without their use '; they at least may save the mortgagor front the risk and trouble of perpetuating the evidence of payment or tender of payment.
> It has-also been contended, ¡that the makers of the act of 1795 could not have understood the land to have been dis-chargediby a tender of the money:; otherwise they would not have compelled'the mortgagor to lodge the money'tendered in eourtfor the use of the mortgagee. But itmustbe remembered1 > that»the act' of- 1795 was- introduced for the benefit of the mortgagor, and to enable him to make the discharge of the mortgage a matter of record; and the makers of that act might have thought it not unreasonable, though
It seems to us that the intent of the statute of 1791 was to make payment, or tender of payment after condition broken, equivalent to all intents and purposes to payment or tender of payment at the day mentioned in the condition.
1. Because such is the natural and obvious import of the language used. The deed shall be utterly void; Upon payment of the money at the day, the deed is utterly void at common law; and we are not able to see any inconvenience that can arise from holding it to be so under the statute, upon payment after condition broken. There is, therefore, no reason why we should construe the words of the statute otherwise than according to their natural import. -- ■ - ■ - - V
2. Because, upon any other construction-, the mortgagor, from the passing of the act; of 1791 to the passing of the act of 1795, must have been without remhdy to regain the land itself, in case the mortgagee chose to retain it. For the provincial act of 12 Geo. 1, cap. 106, was repealed and ceased to be in force at the time the statute of 1791 went into operation
Jq the present ease there is ao complaint that the demand-ant did not tender a sufficient sum to pay all the claims of the mortgagees ; and we are of opinion that upon the tender being made, the deed of mortgage became absolutely void and the land discharged from the incumbrance, and that the demandant thereby acquired a right to enter into the land and hold it against the mortgagees, and that he may well maintain this action to obtain possession.
Judgment on the verdict,
uuut<m Src-m
Littleton. sec. 332.
i ,v. h, Lms 19S'
1 a- a. i.iiws 197.
1 N. H. Laws, 475.