Towle v. Hoit, 14 N.H. 61

14 N.H. 61 | Superior Court of New Hampshire | 1843

Parker, C. J.

Cases which go to shew the warranty deed given the defendant in this case to be void as against creditors, are numerous. 6 N. H. Rep. 67, Smith vs. Lowell; 8 Ditto 38, Parsons vs. McKnight; Ditto 44, Carlisle vs. Rich; 9 Ditto 31, Winkley vs. Hill; 10 Ditto 150, Tift vs. Walker ; 11 Ditto 459, Smith vs. Smith; 12 Ditto 396, McConihe vs. Sawyer; 15 Mass. R. 210, Goodwin vs. Hubhard; 16 Pick. R. 553, Platt vs. Brown; 3 Met. R. 26, Howe vs. Bishop. Bui being thus void, it cannot hove operated to merge the second mortgage, which ran directly to the defendant. The deed was simply void against creditors, by reason of the understanding between Hill and the defendant. The transaction had nothing in its nature to taint any prior contract, made in good faith between the parties, as to the same property. The defendant cannot be said to have forfeited his valid claim, by taking another which is invalid. There was no connection between them, and there does not appear to have been any agreement between the parties for the discharge of this mortgage. The deed and the mortgage are separate sources of title, and each is to be judged by itself.

As to the mortgage to Gordon, it being an incumbrance on the estate prior to that held by the defendant, he had the right to and might well pay it up, for the protection of his own title, and tack it, as it were, to his own. In other words, he may hold the mortgage as if it had been assigned to him, until he shall have received the money due on it, from some one who is entitled to redeem. This is entirely in conformity with the principles laid down in Robinson vs. Leavitt, 7 N. H. Rep. 73, 100, 101, 110, and in the cases there cited.

There is no trace whatever of any agreement to the contrary. There is nothing to show why he should pay up a mortgage and have it discharged for the benefit of others. It was not his duty to do so, and we cannot presume it to have been his intention. Whether it Avas his intention or not, is, however, not material, as the defendant is entitled to hold under his other mortgage, and has made out a good defence upon that.

Verdict set aside.