24 N.H. 484 | Superior Court of New Hampshire | 1852
The contract upon which this action is founded is as follows: The defendant, for a good consideration, agreed to sell and deliver to the plaintiff a note of hand, secured by a mortgage of machinery in a shop in Manchester, together with the mortgage ; and also to relinquish to the plaintiff all his claim to the shop ; and further, not to do any custom work in Manchester or vicinity, such as was then done in the shop, so long as the plaintiff and one Stevens should do business there. Such is the substance of the agreement.
The contract was proved by parol evidence, and the objection to the recovery upon it is that it should have been in writing, and is within the statute of frauds,
The object of the agreement appears to have been to obtain possession of the shop and machinery, for the purpose of carrying bn business in Manchester without competition from the defendant. And the most important part of the contract would seem to be the transfer of the mortgage.
It is settled in this State, by a train of authorities not to be questioned, that a mortgage of real estate is a mere incident to the debt for the security of which the mortgage is given; that a transfer of the debt, ipso facto, transfers the mortgage ; that a parol transfer is good, and that an assignment by deed or writing is not necessary. Southerin v. Mendum, 5 N. H. Rep. 420; Glass v. Ellison, 9 N. H. Rep. 69; Ellison v. Daniels, 11 N. H. Rep. 274; Rigney v. Lovejoy, 13 N. H. Rep. 247.
In Southerin v. Mendum, Richardson, C. J., says, “ We are aware that in Massachusetts the subject is viewed in some respects in a different light, and that it is there held that the interest of a mortgagee cannot be assigned by an assignment of the debt without writing, because the case is within the statute of frauds; but in this State the right of the mortgagee in the land is extinguished under our statute by payment, or tender of payment, even after condition broken. And we are of opinion that the interest of the mortgagee passes in all cases with the debt, and that it is not within the statute of frauds, because it is
A mortgage of personal property cannot possess any higher validity, or require any greater solemnity of form in the sale and transfer, than does a mortgage of real estate. It is but security for the debt, and may pass to the assignee, with the note which it secures, by parol agreement and delivery, in the same manner as a mortgage of real estate. An assignment of the mortgage without the debt passes nothing. If then the delivery of the note in question in this case would transfer the mortgage, and an assignment in writing is not necessary, the point seems narrowed down to this, Is an agreement to sell a promissory note within the statute of frauds ? In other words, is a promissory note to be classed under the head of either goods, wares or merchandize, within the meaning of the statute of frauds, so that an agreement to sell the same must be in writing ?
So far as we have been able to discover, there are but few decisions to be found which bear directly upon this question, and those are not in unison with each other. A promissory note is neither goods, wares nor merchandize, in the common and ordinary sense of those terms. It is only by giving them a broad and unusual signification, that bills of exchange and notes of hand can be included; and such a signification we are not inclined to adopt. We think there is no occasion for extending the construction so as to include matters which are not within the well understood meaning of the statute; and the defence that the agreement to sell the note and mortgage was within the statute, cannot avail.
The other matters embraced in the contract are not particularly relied upon. No allusion was made in the argument to that part of the agreement which related to the forbearance to carry on the business in Manchester; and we discern nothing in it which can be affected by the statute.
As to the interest which the defendant had in the shop, it was not such as could be assigned. He was only a mere tenant at will, and the interest of a tenant at will is not a matter of bar
Judgment on the verdict. ■