Goodall v. Rowell

15 N.H. 572

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Parker, C. J.

*

The deed of the sheriff is in conformity with the statute, so far as that furnishes the particular form. But the blank which is left in the statute might be filled by a reference to the time of the attachment. The question is whether it is necessary it should be so. We are of opinion that it is not. In a levy upon real estate, no reference is had to the time of the attachment. The levy is made as of that time. The value is appraised as of that time. If there has been an increase in value, the debtor has the benefit. If a loss, it is his loss. But the attachment constituted a lien, and the title relates back to the time of the attachment, binding the property from that time, so as to exclude intermediate transfers and incumbrances.

So in a sale of an equity. The sale gives a title from the time when it is made. It is not the right of the debtor at the time of the attachment which is sold. If he has paid the mortgage which existed at the time of the attachment, there can be no sale, but the creditor must levy. If he has paid part, a sale is made, but the purchaser may redeem on paying the residue, not what was due at the attachment.' The sale therefore is not of the right to redeem, as that right existed at the time of the attachment. Nor is it in tact of the right as it existed in the debtor at the time of the sale, for he may have made other mortgages or conveyed all his title. But it is a sale of the right of the debtor as then existing, connected with the attachment, relating back and excluding subsequent transfers by virtue of the lien. This is the precise nature of it. But it is no more necessary to' refer to this relation back in a deed of the equity, than it is in a levy.

If the sale was right, the deed is well enough. If there was any fraud in the sale, as by concealing the attachment and the relation back, that would make another case.

The general clause in the deed is void. It is understood the demandant does not claim under that.

The title acquired by Hutchins & Buchanan, by the transfer to them of the mortgage from the debtor to Judge Woods, since the commencement of the action, cannot alter the case. If it had been to the tenant himself, it might perhaps have defeated the suit; sed quaere ? and see Bailey vs. March, 3 N. H. Rep. 274. The tenant cannot defend himself under it. It will not disprove the demandant’s seizin under his deed from the sheriff. The mortgagee does not appear to have been in possession up to the time of the assignment.

The tenant might have pleaded special non tenure at the first term. If the agreed case were discharged, he could now have no other plea which would be effectual, and it is too late to avail himself of that. Besides, the- assignment of the mortgage does not change that defence. 17 Pick. 438, Mechanic’s Bank vs. Williams ; 7 Mass. 381, Pray vs. Pierce; 4 Mass. 443, Kelleran vs. Brown; 2 N. H. Rep. 9, Mills vs. Peirce.

Judgment for the plaintiff.

Woods, J. did not sit in this case.