Mason v. Davis

11 N.H. 383

• Court: Superior Court of New Hampshire
• Decided: December 15, 1840
• Status: Published

Opinion

Up ham, J.

In the case of Robinson vs. Robinson, 1 N. H. Rep. 161, it was decided that a mortgager cannot maintain assumpsit against his mortgagee for the profits of the land received by the mortgagee between the time of entry to foreclose and the time when the mortgaged premises were redeemed. The court remark, that at common law,when the condition of a mortgage has been broken, the subsequent income of the estate, as well as the title, seems to be vested absolutely in the mortgagee, and that no principle exists at common law, and no provision has been made by our statutes, which will enable the mortgager to recover the profits of the land mortgaged under such circumstances. 10 Mass. R. 433, Cummings vs. Noyes; 6 Johns. 46, Smith vs. Stevens; Powell on Mortgages, chap. 6.

The case of Robinson vs. Robinson was determined prior to the passage of the act providing for the attachment and sale of rights in equity of redeeming real estate mortgaged. 1 Laws N. H. 104. That statute provides that when a sale is made of the equity of redemption of the land mortgaged, and the land is subsequently redeemed by the mortgager, or his assignee, they shall be entitled to an action to recover the mesne profits of the purchaser.

From the facts shown in this case, it appears that the plaintiff’s intestate never redeemed the estate. The equity of redemption was sold at auction to the defendant, and he entered into possession and leased the premises for one year, for the sum of fifty dollars, which was received by him. Subsequently to this the intestate released all his right in the property, which was a mere right of redemption, to McDaniel and Restieaux ; and they, a few days before the defendant’s title became perfected by foreclosure, redeemed the property ; and the question arises, in whom exists a right of recovery of mesne profits under these circumstances. We are clearly of opinion that this right, if it exists at all, exists in McDaniel and Restieaux. They, by the purchase of the intestate, acquired all the right and interest accruing to the intestate by virtue of his relation as mortgager. The interest of the mortgager in the land, after the execution of this conveyance, ceased entirely, and became transferred, with all its rights and equities, to McDaniel and Restieaux, as his assignees. Any right of recovery for mesne profits under the mortgage, which may have existed in the mortgager, has therefore been transferred to them, and a suit for such profits, if it can prevail at all, can be maintained only in their names, and cannot be recovered by the party now prosecuting this action. There must, therefore, be Judgment for the defendant.