Green v. Currier

3 A. 428, 63 N.H. 563

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

Opinion

Clark, J.

The quitclaim deed of the bank to Currier conveyed to him the title of the bank in the premises, which was that of a mortgagee in possession for the purpose of foreclosure (Hinds v. Ballou, 44 N. H. 619); and by his continued possession under the deed, the foreclosure proceedings, to which the plaintiff was a party, were completed, and Currier’s mortgage title became absolute as against the plaintiff. The deed from Berry to Currier is immaterial. It was a conveyance of the equity of redemption, which did not affect either of the prior mortgage-titles, or the title subsequently acquired by Currier from the bank. It could operate upon the subsequently acquired mortgage title only by way of merger, and there could be no merger because of the intervening mortgage title of the plaintiff. In such a case it is to be presumed, as matter of law, that the parties did not intend to extinguish the mortgage. The doctrine, that where the purchaser of an equity of redemption takes an assignment of the mortgage it does not operate to extinguish it, if it be for the interest of the assignee to uphold it, is too well settled to require the citation of authorities. Bacon v. Goodnow, 59 N. H. 415; Stantons v. Thompson, 49 N. H. 272. And when it will subserve the purposes of justice, equity restores a mortgage released through mistake, and gives to it its original priority as a lien. Hammond v. Barker, 61 N. H. 53.

Judgment for the defendant.

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