Graves v. Rogers

59 N.H. 452

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1879
• Status: Published

Opinion

Clark, J.

“A purchaser of land subject to a mortgage, having paid the mortgage notes and afterwards obtained a loan upon them by representations leading to the belief that the mortgage was still a subsisting lien, is estopped from showing and insisting upon the fact of the payment of the notes. It would be a fraud, on his part thus to contradict a statement to the injury of another who had been influenced to act upon the statement as true.” Jones Mort., s. 947; International Bank v. Bowen, 80 Ill. 541; Powell v. Smith, 30 Mich. 451. It appears that the plaintiff purchased the Iloundy mortgage of Bradford in good faith, before the defendant commenced his levy upon the land. As against the plaintiff, Bradford is estopped to deny the validity of the mortgage. Estoppels are binding upon parties and privies. The defendant, claiming title to the demanded premises under Bradford by virtue of the levy of his execution against him, is a privy in estate with him; and the levy being subsequent to the sale and assignment of the mortgage by Bradford to the plaintiff, the defendant is bound by the estoppel upon Bradford, and cannot question the validity of the plaintiff’s mortgage. Parker v. Crittenden, 37 Conn. 148. The reasoning of the court in Benson v. Tilton, 58 N. H. 137, and Bowman v. Manter, 33 N. H. 530, is not applicable to the facts in this case, because in those cases there was no concealment of facts and no estoppel.

Judgment for the plaintiff.

Dob, C. J., did not sit: the others concurred.