Adams v. Rice

18 A. 652, 65 N.H. 186

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1889
• Status: Published

Opinion

Smith, J.

When the mortgage, as originally executed and recorded, was changed by the insertion of words descriptive of the Robie horse and cart, it became a new mortgage as to those chattels (if not as to all the chattels), and valid between the parties, although no new affidavit was made and subscribed upon or appended to the mortgage and recorded therewith. G. L., c. 137, ss. 6, 10; Gooding v. Riley, 50 N. H. 400; Clark v. Tarbell, 57 N. H. 328. How the rights of the mortgagor’s creditors were affected by the change there is no occasion to inquire.

The defendant had the legal right to take the mortgaged chattels into her possession before condition broken for the purpose of preserving her security, and her reasonable expenses in caring for and preserving the property would become a charge upon it. The title to the property was in her, subject to be defeated by the payment of the mortgage debt. But, while the mortgagee’s possession was lawful, she could not sell the property, except by consent, until thirty days from time of condition broken. G. L., c. 137, s. 19. The condition was not broken until six months from April 20, 1886, the date of the note secured, and the plaintiff had the right under the statute during the thirty days after the note matured to redeem. This right would be defeated if the mortgagee could in the meantime sell the property: or, if not defeated, and if the mortgagor could pursue and recover it from the purchasers, he ought not to be subjected to the trouble, expense, and vexation of following it in the hands of perhaps widely scattered claimants. As the sale by the defendant was premature and against the plaintiff’s objection, she is liabLe to him in damages under the count in case. The count in trover is not sustained.

Case discharged.

Carpenter, J., did not sit: the others concurred.