Clough v. Rowe

3 A. 314, 63 N.H. 562

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1885
• Status: Published

Opinion

Clark, J.

“No action for the recovery of real estate shall be brought after twenty years from the time the right to recover first accrued.” G. L., c. 221, s. 1. A mortgagee’s recovery of possession by a real action before breach of condition (when possession is not reserved by the mortgagor) is a mere provisional protection of the creditor’s security. Furbush v. Goodwin, 29 N. H. 321, 332: Tripe v. Marcy, 39 N. H. 439, 444; Gray v. Gillespie, 59 N. H. 469. Foreclosure being an application of the land to the payment of the debt, an action for the foreclosing recovery of the estate cannot be maintained until the debt is due; and under the statute, limiting the time within which the foreclosing right of action can be exercised, the limited time does not begin before the right exists. Howard v. Hildreth, 18 N. H. 105; Tripe v. Maroy, supra 445. If the unpaid note were payable twenty-one years after the date of the mortgage, the right of enforcing its payment by foreclosure would not be barred a year before foreclosure could be begun.

Exceptions overruled.

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