Marsh v. Smith

18 N.H. 366

• Court: Superior Court of New Hampshire
• Decided: December 15, 1846
• Status: Published

Opinion

Parker, C. J.

The first question raised by this case is whether a mortgagor, in a suit against him by his morígagee to recover the possession of the mortgaged premises, may defeat the suit -by a plea of special non-tenure. In real actions, not founded upon a title in mortgage, this is a good plea in abatement in certain 'eases. Whidden v. Proctor, 17 N. H. Rep. 90, and eases cited. But a mortgage being a security charged upon the land, and a suit claiming under it being instituted for the purpose of obtaining the possession in order to secure the rents and profits, or to effect a foreclosure, it has been settled in Massachusetts that any person in possession is liable to the suit of the mortgagee, and that the latter is not bound to bring his action against the tenant of the freehold. 11 Mass. 216, 217, Keith v. Swan; 22 Pick. 74, Shelton v. Atkins.

It is very clear that the mortgagor cannot abate the writ of the mortgagee, and retain the possession against him by alleging that he does not claim a freehold. If the mortgage is invalid, and conveys nothing, or if the mortgagee has assigned, and has no right, the mortgagor may show that fact upon a trial of an action brought by the mortgagee. But if the mortgage is valid as between the parties, the mortgagor cannot claim to remain as tenant of a third person, against his own deed, nor insist that the action should be brought against such third person because the action in form demands a freehold, which he does not possess. 17 Pick. 121, Hunt v. Hunt; 6 Verm. 602, Reed v. Shepley; 5 Halst. 102, Den v. Van Ness. Although the last two were cases of ejectment, the principle which governs them applies equally well in a writ of entry. On this ground the plea in this ease is bad as to James Smith, the mortgagor, and must fail as to both, the defendants having joined in it. Such is the well settled rule in relation to pleas in bar. 1 Chitty Pl. 545; 1 Saund. 28, n. 2; Archbold’s Civil Pl. 240, a ; Strange 509, Phillips v. Biron; Ditto 994, Smith v. Bouchier; Ditto 1184, Middleton v. Price; 3 D. & E. 376, 377, Duffield v. Scott; 3 Mass. 310, Moors v. Parker; 2 Caines 108, Schermerhorn v. Tripp; 7 Cranch 158, Marsteller v. McLean. And there seems to bo no sound difference to distinguish this ease. Non tenure is sometimes pleaded in bar. So are the authorities in Massachusetts.

We see no reason, however, to question the soundness of the general principle adopted in Massachusetts, and we therefore hold that the mortgagee and his assigns, claiming title as of mortgage, are entitled to maintain a writ of entry for the recovery of the possession against anyone in the actual occupation of the premises, and that non tenure special is therefore not a good plea where the action appears to be founded upon the mortgage. A writ of entry by a mortgagee is, to a considerable extent, a substitute for a bill in chancery, used generally for the purpose of effecting a foreclosure, and any one in actual possession may well be made a party to it. The plea is bad, therefore, as to each of the defendants.

Judgment that the defendants answer over,