Weeks v. Eaton

15 N.H. 145 | Superior Court of New Hampshire | 1844

Gilchrist, J.

We have repeatedly settled that a deed of land by a mortgagee will pass nothing, unless the debt secured by the mortgage be transferred. Bell vs. Morse, 6 N. H. Rep. 205; Smith vs. Smith, Supra 56-68. And it was also settled in the latter case, that the mere fact that the mortgagee has the right to transfer the debt to his grantee, will not cause the deed to convey an interest in the land, unless the debt be transferred. And a mere entry by the grantee of a mortgagee, before an entry by the latter, without the possession required by the statute, is of no effect, and his deed will pass no interest.

Until the settlement between Upham and Isaac Hill, whatever claim the former had against Horatio Hill was a matter of unliquidated damages. Perhaps we have a right to infer that the anm of 0500.00 which he paid Isaac Hill was the result of a compromise, and in that case Horatio Hill would not be bound, unless he assented to it; but it does not appear that he did so. The propriety of Upham’s payment to Isaac Hill is still an open question as regards Horatio. Upham, then, having an unliquidated claim for damages against Horatio, released all his interest in the land. What title could, then, vest in his grantee ? Up-ham had not entered into the land, and had not assumed to transfer any debt. If the claim had been liquidated, perhaps, although he might not have had a debt, strictly speaking, against Horatio, the claim might have been assigned by a deed of the land with warranty. Or, if the mortgage had been conditioned for the payment of a sum of money, no security having been given for it other than the mortgage, perhaps a conveyance of the land would transfer the debt. But as the facts are in this case, his release transferred no interest whatever ; and, as the plaintiff’s title depends upon the validity of this deed, the action cannot be maintained.

It is, therefore, unnecessary to settle the question whether Horatio Hill’s deed to Upham included the land in dispute; because, if it did, the title is still in Upham. But he mortgaged to Upham “ one rmdivided third part of a certain tract of land I purchased in — S. C. Badger and John Whipple of Joseph Robinson.” If there be any ambiguity in this description, it would seem to be a patent one. But we cannot know judicially that the words, í£ S. C. Badger,” &c. are not the name of a place. Such a name would be no more singular than “ Jo Daveis County,” which is a well known place. But we are not compelled to discuss and determine this point, as, for the reasons above stated, there must be

Judgment for the defendant.