Ffrost v. Butler

58 N.H. 146

• Court: Supreme Court of New Hampshire
• Decided: August 5, 1877
• Status: Published

Opinion

Stanley, J.

The plea alleges that the note was the joint and several note of the defendant and D, but there is no allegation that the amount tendered was enough to pay the balance due on it. The debt secured by the mortgage was the joint and several debt of both mortgagors. Upon the facts alleged in the plea, before either of them could hold his undivided half of the mortgaged premises disencumbered of the mortgage, he must pay or tender the amount actually due on the mortgage debt. Perhaps under some circumstances the defendant might compel the plaintiff to foreclose the mortgage on the other half, so as to equalize the payment of the debt and the application of the security. How that might be, it is not now necessary to determine. For want of an allegation that the amount tendered was all there was due on the mortgage debt, the defendant’s plea is bad. The first fault in pleading, then, is the defendant’s, and there must be

Judgment for the plaintiff on the demurrer.

Allen, J., did not sit.