Worster v. Great Falls Manufacturing Co.

41 N.H. 16 | N.H. | 1860

Bell, C. J.

The first question presented by this case arises upon the sealed writing executed by E. H. Pray to D. Pray, July 8, 1848, on the back of the mortgage which had been assigned to I). Pray.

By this writing E. H. Pray acknowledged D. Pray to be indorsee of tbe note and assignee of tbe mortgage; that tbe condition of tbe mortgage is broken; that D. Pray has entered and taken peaceable possession for tbe purpose of foreclosing, and that be is in full and lawful possession, and agrees that any entry by him upon tbe premises during the year next ensuing shall not be considered, or claimed to be in delegation of D. Pray’s possession, but in subordination to it.

This writing is offered as evidence of the foreclosure of tbe mortgage, and it is tbe only evidence offered for that purpose. The second mode of foreclosing a mortgage provided by tbe statute, (Rev. Stat., oh. 181, sec. 14), is “ by peaceable entry into tbe mortgaged premises, and continued actual peaceable possession thereof for tbe space of one year, and by publishing, in some newspaper printed in tbe same county, a notice” in form prescribed. This writing is- not evidence to prove these points. As against E. II. P. and those who claim under him, bis admission of a peaceable entry and possession, taken for condition broken and for tbe purpose of foreclosure, would be evidence of those facts. Probably, if tbe other facts necessary to constitute a foreclosure were also proved, it ivould be competent evidence of these facts against every body. But of tbe next requisite — actual continued peaceable possession for one year — this writing furnishes no evidence. It contains an agreement that any occupation by E. H. Pray during tbe year should be deemed in subordination to D. Pray’s possession. But there it stops. It does not show that either retained tbe actual possession. It does not constitute E. H. Pray tbe tenant of D. Pray, nor require him in any way to interfere with tbe property. There is no evidence in tbe case that either E. TL or D. Pray were in continued actual possession of the property for a year, and there is no evidence that any notice was ever given by publication, as the statute requires. Consequently no foreclosure was proved, and no competent evidence of foreclosure was offered wbicb the jury could consider.

D. Pray being but the assignee of a mortgage not foreclosed, and not being shown to be in possession, could not make a lease of the property which would pass any right to sue for flowage.

There is no evidence that he was ever in possession; for though E. H. Pray’s admission under seal might be evidence, if a foreclosure, complete in other respects, were shown-, his admission is evidence against himself, and those who claim under him only, and not against strangers, as these defendants are. As to them, the admissions of E. H. Pray, whether verbal or written, or by deed, are merely hearsay. If living, he may be produced, and his testimony, under oath, laid before the jury, and if not some other evidence under oath must be produced.

In the case of Hobson v. Roles, 20 N. H. 41, the question arose as to the effect and validity of an acknowledgment of this kind, though it seems not to have been so full as that before us. It was held that an acknowledgment in writing, by the mortgagor, that he surrenders the premises to the mortgagee, does not afford evidence of the subsequent possession of the latter, nor that the party surrendering was in as his tenant; nor does the act amount to a foreclosure. Gilchrist, J., says: “ There is no evidence of a foreclosure ; there is no evidence of his having taken possession of the mortgaged premises. Mathes, on the 1st day of September, 1882, by writing on the back of the assignment, acknowledged that he had surrendered possession of the premises to Carter for breach of condition of the mortgage; but Carter made no entry. The acknowledgment of a surrender of the premises by Mathes is not equivalent to an entry by Carter. It is no evidence that Mathes held from that time as the tenant of Carter, even if there were evidence that Mathes was in possession at the time.”

If D. Pray had been in possession of the premises, his lease of the property would be effectual to convey his interest, whatever it may have been. And the terms of the lease may therefore be considered.

There is no objection to the instrument because it purports to be an indenture between two persons, and is executed by one only, except that it might give rise to a question whether it might not be an imperfect and unfinished instrument. But no such question is raised here. It contains no grant, covenant or stipulation, on the part of the plaintiff, which would call for her signature ; and if executed and delivered as a complete lease, it would be effectual, as if it were a deed poll. The estate conveyed is not an estate for years, nor for life, since no years are mentioned in it, and it is granted to the plaintiff and her heirs and assigns. The estate granted is a qualified and conditional fee, to continue for ever, provided the sum of fifty dollars a year shall be paid, on or before the expiration of every twelve months from the date. In its operation it must be regarded as a grant for a year, to continue for another year if the annual payment is made, and so on. This provision imports not a condition, but a conditional limitation. The estate is to continue so long as the payments are made. The effect would not be materially different if it were regarded as a condition, since the payment must be a condition precedent to the continuance of the estate for another year. Whenever there should be a failure of the payment, the estate must terminate. The mere production of the lease, then, after the termination of one year, does not prove the existence of any right or interest in the premises. It is necessary to show, further, that the condition has been complied with every year, or the estate has terminated. The instrument was dated August 1, 1858; the suit is brought December 12, 1855; the griev-anee is alleged from August 1, 1858, to tbe date of tbe writ. Upon tbe construction we give to tbe instrument, it was valid to August 1, 1854, without any payment, if I). Pray was in a situation to make a valid conveyance. If fifty dollars was paid on or before August 1, 1854, it was then valid for another year, till August 1, 1855, and so on.

Tbe evidence of payment first offered was tbe receipt of D. Pray. It was not admissible evidence of tbe payment, being but the declaration in writing of a person who could be sworn, and who could testify to tbe fact himself.

But it is admitted that a witness would testify that tbe payment was made in tbe terms and for tbe purpose expressed in tbe receipt, which is dated August 1, 1858.

Tbe receipt, construed most favorably to tbe plaintiff, imports that D. Pray bad received fifty dollars in full for ten year's’ rent of tbe land leased; and this would be competent evidence that tbe rent for ten years, including this fifty dollars, bad been paid. But a witness testifying to these facts must state tbe amount and object of the payment, tbe agreement, and other circumstances attending it. He could hardly do that in tbe terms of tbe admission, and it is useless to conjecture what form tbe testimony may assume. It is therefore not necessary to pursue the subject further, since there must be

Judgment on the verdict on the first exception.