5 N.H. 252 | Superior Court of New Hampshire | 1830
The opinion of the court was delivered by
It is contended, on behalf of these defendants, that, when Willard paid to Fox the whole amount of his debt, there was an end to Fox’s estate ; and that Willard cannot now maintain this action, as assignee of Fox’s reversion, because Fox’s estate being at end, he had no reversion to assign.
If Willard had paid to Fox only the amount due to the latter, after deducting the rent of the land while it had been in possession of Harvey under the lease, this would have been simply a discharge of the Ralston mortgage, and, as is now contended, Fox would have had no reversion to assign. But when Willard, on the 24th October, 1822, went to redeem, Fox, by his tenant, Harvey, had been in possession of the land ten months, and was bound to account for the rents during that time, and Willard was entitled to have those rents deducted from the debt due to Fox, and to redeem by paying the balance. But Willard, instead of paying wbat was due after deducting the rent, paid the whole amount due to Fox, and thus,
But it is said, in behalf of the defendants, that Willard, when, on the 6th December, 1821, he contracted to pay the Ralston mortgage and save Fuller harmless, made that debt his own, and ought not to have let it remain unpaid, and still claim that the rents and profits of the land, while the debt was permitted by him so to remain, should be allowed by Fox in part payment of the debt.
The answer to this objection is, that Willard, when he contracted to discharge the Ralston mortgage, became the assignee of the mortgage given by Harvey to Fuller, and as such assignee, entitled, as against Harvey, to enter and receive the profits of the land. Willard might have discharged the Ralston mortgage the very day he became the assignee of the Fuller mortgage, and then have entered and turned Harvey out of the possession of the
But Willard elected to take a different course. Instead of discharging the Ralston mortgage and turning Harvey out of possession, he chose to adopt Harvey as his own tenant, and for that purpose became the assignee of that mortgage.
To this we see no objection. The course pursued was not injurious to Harvey. It left him in possession of the land, and only made him liable to pay the rent to Willard instead of Fox ; and it is clear, that whatever rent he might have paid to Willard, must have been a payment, pro tanto, of the Fuller mortgage, and must have been allowed to Harvey, when he came to redeem the land, by discharging that mortgage. In giving effect to the contract between Willard and Fox, no principle of law is violated, and complete justice is done to all parties. Fox has received what was due to him, and no more. Willard will receive the rents and profits, which he was entitled to receive ; and Harvey is only compelled to pay what, in justice, he ought to pay. And this view of the case seems to us to be a decisive answer to the objection raised by the defendants.
It only remains to enquire, what effect the tender to Willard of the money secured by the Fuller mortgage is entitled to have in the decision of this cause ?
If that tender was duly made, the land was thereby discharged from the Fuller mortgage. 1 Johns 110, Jackson v. Crafts ; Co. Litt. 209, b.
But we are not aware of any rule of law which can give to that tender the effect of discharging the debt secured by the mortgage, or of releasing the mortgagor from the payment of rent which he had covenanted to
We are, therefore, of opinion, that there must be
Judgment for the plaintiff.
