Clark v. Hobbs

11 N.H. 122

• Court: Superior Court of New Hampshire
• Decided: December 15, 1840
• Status: Published

Opinion

Parker, C. J.

Both parties claim title under Simon Dear-born, who was formerly the owner of the demanded premises.

On the 8th of July, 1818, he mortgaged to the Phillips Exeter Academy, with a condition for the payment of a note for $1468, on demand, and interest.

On the 22d of August, 1818, he mortgaged to the plaintiff, to secure another note.

The Academy recovered judgment September T., 1822, as of mortgage. A writ of possession was executed November 30th, 1822, and the mortgagees remained in the peaceable possession of the premises until July 10, 1826, when they conveyed their interest, by quitclaim, to Samuel Lock, who, January 10th, 1829, conveyed by warranty to the defendant.

The plaintiff offered to prove that the mortgage to the Academy was given in fact to secure and indemnify the Academy in relation to another tract of land, on the equity of redemption of which, at the request of the mortgager, the Academy had levied a debt for which he was surety, taking an assignment of a mortgage upon it, made by Reuben G. Dearborn; and that the Academy had since the levy had peaceable possession of that tract of land, and held it so long as to have perfect evidence of title ; and he contended that, being thus indemnified, the true condition upon which the mortgage to the Academy was given had been performed, and that it became discharged.

But a sufficient answer to this is. that the mortgage to the Academy does not appear to be on any such condition. It appears, on its face, to' be given to secure the payment of money acknowledged to be due.

After the condition was broken, a suit was instituted, judgment obtained, possession taken, and the Academy more than three years continued in the peaceable possession of the premises. This operated as a foreclosure, not only as to Simon Dearborn, but as to the demandant and all others who then had any claim upon the land derived from him. 4 N. H. Rep. 424, Kittredge vs. Bellows; 17 Pick. R. 122, Hunt vs. Hunt; Downer vs. Clement, (ante 40.) It is equivalent to making them parties to a bill for foreclosure.

So long as that judgment stands, it is evidence of the amount due, and of the right of the Academy to the possession of the land, the amount of the judgment not having been paid.

Having thus foreclosed, the corporation conveyed to Lock, who afterwards conveyed to the defendant.

If, then, the facts are as the plaintiff alleges, whatever remedy he might have had to avoid the mortgage 1*o the Academy, if any, he cannot now be admitted to show those facts, for the purpose of defeating the title of the defendant, who appears to be a bona fide purchaser, without notice of any fraud or trust, and who has a right to rely upon the mortgage on record, and the foreclosure, as evidence of a perfect title in the Academy, when they conveyed to Lock, his grantor. Judgment for the defendant.