3 N.H. 294 | Superior Court of New Hampshire | 1825
delivered the opinion of the court.
This case does not seem to us to present any question of law, about which there can be any diversity of sentiment, and, to be clearly understood, requires only a plain statement of the facts.
John Bassett sen. by two deeds, made at different times, conveyed his farm to W. Bartlett in mortgage, to secure the payment of two sums of money. While the farm was thus under mortgage, Moody sued* out a writ of attachment against J. Bassett, sen. and caused the farm tobe attached.— About the time this attachment was made, Bassett conveyed the farm to Taylor, the demandant, subject to Bartlett's two mortgages. But Taylor's deed was not upon record, when the attachment was made ; nor had Moody any notice of it.
Moody, having obtained a judgment, and an execution, caused his execution to be extended upon a part of the farm ;
Taylor elected not to redeem the land covered by Moody’s extent, by paying Moody’s debt ; so that, at length, Moody and Taylor became severally seized absolutely of several parts of the farm ; while the whole was subject to Bartlett’s mortgages.
In this situation of the business, the demandant purchased Bartlett’s two mortgages, and took an assignment of them ; and he now' claims to hold the whole farm, until he shall receive from Moody a reasonable contribution to the redemption of the mortgages.
To this the tenant objects, that Taylor having a right to redeem, and having in fact redeemed the land, the mortgages must be considered as discharged. 2 N. H. Rep, 300, Eaton vs. George.—7 John. 278, Collins vs. Terrey.
The demandant admits, that, when he, who has a right to redeem, buys in the mortgage, the debt is extinguished and the mortgage discharged ; but he contends, that the rule is not applicable in this case, because he, in fact, purchased only the right to redeem a part of the land mortgaged ; and such a case is not within the reason of the rule. And we are not aware, that this distinction is an unsound one. When he, who has the right to redeem pays the mortgage money, the mortgage is discharged, because he, who thus pays, becomes absolutely seized of the estate ; he pays his own debt on his own account, and has the benefit of the payment The mortgage is extinguished ; because the debt is paid by the real debtor to the creditor.
But, in the present case, the land of the demandant, and the land of the tenant, were respectively liable for all the money due on the mortgages ; and either party might have paid the mortgage money, and had his action against the other for a reasonable contribution. 7 Mass. Rep. 355, Taylor vs. Porter.
And we see no reason, why either of them might not have bought in the mortgages, and held all the land, until a reasonable contribution was paid by the other.
