63 N.H. 421 | N.H. | 1885
The plaintiffs, Henry M., Edward, Jr., and Frederick P. Thompson, were the children of Edward and Elizabeth A. Thompson. Both parties claim title under Elizabeth, — the plaintiffs as her heirs, and the defendant under her conveyance.
September 15, 1876, a title to the land in question was in Elizabeth, and she mortgaged it to James H. Williams to secure the note of herself and husband for $3,500. February 1, 1877, Elizabeth died, leaving the plaintiffs, her minor heirs. No administration was taken on her estate, nor guardian appointed for the children. July 25, 1879, Williams entered upon the mortgaged premises for the purpose of foreclosure, and perfected the same according to the statutes, without knowing of the existence of the plaintiffs, and they had no knowledge of the proceedings for foreclosure. December 2, 1880, Williams quitclaimed to Edward, the father and natural guardian of the plaintiffs, all his interest in the premises for his debt and costs in the foreclosure, and both parties supposed that it passed a perfect title.
The defendant, October 27, 1882, relying upon the record of the foreclosure and the representations of Edward as to the validity of his title, loaned him in good faith $16,000, and took a mortgage to secure its payment on the premises in question. The defendant is in possession of the premises under process of law for the purpose of foreclosing his mortgage for condition broken. The plaintiffs claim that they are not barred from redeeming the Williams mortgage by the foreclosure, first, because they had no knowledge of it, and second, because of their minority.
Aside from the statutes and decisions of this state, the plaintiffs, on well recognized general principles, would be entitled to redeem. *423
In proceedings in chancery for the foreclosure of mortgages, in other jurisdictions, all persons in interest are made parties and notified of the proceedings, or they are not bound by the decree; and, so far as the statutes of this state have not provided independent methods of foreclosure, and do not control and govern the substance and form of foreclosures in chancery, the same may now exist. Wendell v. Bank,
It does not appear that the plaintiffs had notice in fact of the proceedings of foreclosure on the Williams mortgage; and this raises the question whether the notice required by the second mode, in c. 136, s. 14, of the Gen. Laws, is all the notice they would have been entitled to if they had been of age. It appears that the statutory notice was duly given.
Downer v. Clement,
Howard v. Handy,
It is believed that the practice in this state has generally been, not to join the wife in the legal proceedings brought to obtain the possession of land mortgaged by the husband, in which she has released her dower, for the purpose of foreclosing, yet it seems never to have been questioned that her right to redeem has been foreclosed.
Is it a greater statutory innovation to say that minor heirs who may bring a bill to redeem at any time after condition broken, by next friend or guardian, should be foreclosed without being made parties or notified? Their disabilities are not greater than those of married women at common law, and we are not aware why the statutory foreclosure may not apply to them in this respect as well as married women.
This brings us to the second inquiry, whether the plaintiffs are excepted from the operation of the foreclosure because of their minority. It is true that, in proceedings at common law, no valid judgment can be rendered against a minor without the appointment of a guardian ad litem, and that the deeds of minors are voidable; but this does not answer the inquiry. It is not what their rights are at common law or in chancery, but what they are now, as modified and controlled by the statute; what the intention of the legislature was in enacting it, and how it should be construed. It is plain that it was not the design of the statute to reenact the chancery method of foreclosing mortgages, but to go aside from it and establish a new and substantially independent system. It was first enacted in this state February 16, 1791, and is based upon the idea that a mortgage deed conveys land on the failure of the mortgagor to perform its condition, with the right of the mortgagee to enter, take the rents and profits, and foreclose in some form the equitable right of the mortgagor to redeem; that this being the contract of the parties to the mortgage, when the mortgagor fails to perform the condition, the mortgagee under his authority in the deed may enter, take the profits, and commence the foreclosure provided by law; that mortgages made subsequent to the statute would necessarily refer to it, and be governed and controlled by it in all matters affecting their validity, construction, or discharge — Chamberlain v. (Company,
The statutes as to the foreclosure of mortgages, in the editions of 1797, 1815, and 1830, named the heirs of the mortgagor, among others, as persons that may redeem to avoid a foreclosure, making no exception, in either edition, of minor heirs. In the Revised Statutes it is in substance provided that the mortgagor and those claiming under him may redeem. Rev. Sts., c. 131, ss. 14, 17. The language of the General Statutes and of the General Laws is alike, and is that "The right of the mortgagor, and all persons claiming under him, to redeem any mortgaged premises, shall be forever barred and foreclosed by the mortgagee in the following modes," etc. G. L., c. 136, s. 14.
It cannot be well claimed that this statute does not mean the same it would if it had specially named that the heirs of the mortgagor shall be forever barred and foreclosed, nor that the language does not include all his heirs, whether adults or minors; but if a doubt exists, it would seem that the language used in the early statutes removes it.
It is said, however, that all statutory provisions are construed as meaning to include in the scope of their effect only such persons as have such a legal status that their rights can be affected thereby. This may be true in instances where the legislature has no power to do so, or perhaps where for good reasons it is plain that it did not intend to do it; but in this instance the legislature had the power, and apparently has exercised it, — at least, it has used language that includes the plaintiffs, if it intended to do so.
The mortgagee, by foreclosing the mortgage, only appropriates the land in the manner authorized by the ancestor, the mortgagor, to the payment of the debt for which it was pledged. The contract is, that he may do this at any time after condition broken. The heirs claim, in substance, that by reason of their minority the contract is suspended as to them, and that a statutory foreclosure cannot be made under the statute with reference to which the deed was made. But we think it was the intention of the legislature that the mortgagee should have the right to proceed with the statutory *426 foreclosure according to the letter of the statute; that the plaintiffs are bound by the deed of Elizabeth; and that Williams had the right to foreclose it in the manner provided by statute, under the authority given him by Elizabeth in her mortgage deed. Pitts v. Aldrich, 11 Allen 40.
The legislature, in authorizing an administrator, under the license of the probate court, to execute a deed of land which the ancestor contracted to convey (G. L., c. 201, c. 10), is an instance of its providing for the completion of the contract of an ancestor without special reference to the heirs, in order that justice may be done. Also, in section eleven of the same chapter, it is provided that when it shall appear by the will of a deceased person that it was his intention that his executor should dispose of his real estate for any lawful purpose, the judge may license him to sell the same for the purpose intended.
In Boody v. Emerson,
So far as the statute has received a construction by the court, it has been that where its provisions are complied with, the foreclosure is a bar to the right of every one to redeem claiming under the mortgagor. Kittredge v. Bellows,
It is true that it is the policy of the law to guard the rights of minors, and this is entitled to its weight in the construction of this statute; but it is also true that it is the policy of the law in this state that our public land records shall state completely and truthfully our land titles. This is also entitled to its weight. It may be that the construction that would enable the plaintiffs to recover would not harm the usefulness of the statute, or the confidence that *427 is and should be placed in the reliability of our land records as a protection against latent rights, if they exist, but do not appear of record, and in no way are made known to the public, but it is to be feared that it would.
The case at bar is a marked instance of the wrong, if not the fraud, that may be practised upon innocent purchasers arising from such a result; and to what extent the titles to other lands may be affected in like manner is not known.
Our conclusion is, that the plaintiffs are barred by the foreclosure of the Williams mortgage.
Bill dismissed.
BLODGETT J., did not sit: the others concurred.