Riddle v. Fellows

42 N.H. 309

Opinion

Sargent, J.

The question raised here is whether the plaintiff is entitled to hold the premises, by paying the first or Bean mortgage, the one which was given before the purchase of the equity of redemption by himself; or whether the subsequent mortgages which the defendant now holds are good against the plaintiff’s title, and must be paid by him before he can perfect that title to the premises; and this question depends entirely upon the provisions of the statute, and the construction which they shall receive.

When the law was first passed, authorizing equities of redemption to he attached and sold (in 1822, N. H. Laws of 1830, 105), the statute, beside providing how the land should be attached, and how the equity might be sold, and the form of the deed that should be given by the sheriff to the purchaser, and how the right thus sold should be redeemed and released, contained this provision : “ All deeds made and executed in pursuance of the provisions of this act, shall be as effectual, to all intents and purposes, to convey the debtor’s right in equity aforesaid to the purchaser, his heirs and assigns, as if such deed had been executed by such debtor or debtors.”

This left the purchaser of the equity with a deed of his title, which he might get recorded or not, as he pleased, and he would stand upon that as he would upon a deed from the debtor of the same right. If his deed was recorded, that would be notice in law to all others; if not recorded, he must run his risk of attachments or other conveyances ; and thus the law remained till the Revised Statutes. In the revision, although the deed from the officer is required substantially the same as before, yet the provision that this deed shall convey all the debtor’s right, &e., was repealed, and a new section was added as follows: “ No sale upon execution of any greater interest in any real estate than a term of seven years shall be valid, except against the debtor and his heirs, unless the execution and the return shall be recorded in the registry of deeds in the county in which the estate is situated.” Rev. Stat., ch. 196, sec. 8.

There can be no doubt that the equity of redemption in real estate is an interest greater than a term for seven years, yet no time is specified in this section when the execution and return are to be recorded, in order to make the sale of the equity effectual; but section first of the same chapter provides that executions upon which equities of redemption have been sold, with the doings of the officer thereon, “ shall be returned according to the precept thereof.” Now it must have been intended, we think, that the record which section eight requires of this execution and return, should be made before the return day of the execution, when the officer is expressly required to return both to the clerk of the court to go upon the files. This would be analogous, also, to the requirement in regard to the recording of executions and officers’ returns thereon, in case of a set-off of real estate. Rev. Stat., ch. 195, sec. 12 ; Comp. Laws 501.

And we are of opinion, from all the aforesaid provisions in regard to the recording and returning of executions and returns on which equities of redemption have been sold, that it was the intention of the legislature that the rule should be the same in cases of equities of redemption as with levies on real estate, as expressed in section 12 of chapter 195 of the Revised Statutes: “ All the debtor’s interest in such real estate shall pass by the levy as against all persons whatever', if the levy is recorded as aforesaid, on or before the return day of the execution ; otherwise, only as against the debtor and his heirs, until such record is made.”

Had the execution and return in this case been recorded in Merrimack county at the time it was in Hillsborough (probably by mistake), then the sale would have been good and valid, even against the mortgages which had been made and recorded after such sale of the equity, and before such record of the execution and return; but the execution and return, not being thus recorded in the county where the real estate was situated on or before the return day of the execution, this purchaser’s title fails, as against those mortgages which had been recorded at any time after the sale and before the execution and return were thus recorded; and whether those mortgages were recorded before or after the return day of the execution is not material.

Tbe recording of tbe officer’s deed of tbe equity under this statute is of no consequence. It is not the record which the law requires, and is, therefore, no notice to any one. And, in fact, under the old law, when the recording of this officer’s deed must have been taken to be legal notice to every body of the transfer of the property, yet it gave very little actual notice to any body of the facts they would wish to know; and this was undoubtedly the reason why the statute was changed in this respect at the time of the revision. The deed, when sent to the registry, was of course entered on the index, in the name ■ of the officer, as grantor, to the purchaser, as grantee. The name of the debtor whose land had been conveyed did not appear; and suppose a man was desirous of purchasing a farm in this county, if he would be sure that the equity had not been sold to some one, he must first ascertain the names of the sheriff and all his deputies, and examine all the deeds they had all given to any persons, else the single one that he should thus fail to examine might contain the conveyance of the land in question. But when the execution and the officer’s return are recorded, the names appearing on the'index at the registry are the names of the debtor and creditor in the execution; and, by that means, any person, having occasion to examine the records, will be guided by the index in the right direction, and will get the same notice that he would from a deed from the debtor to the creditor, which he would not do from the officer’s deed of the premises.

As the record here shows the execution and return in this case were not recorded in the county where the land lay within the time required by law, nor until after all the mortgages specified in the defendant’s answer were made and recorded, the plaintiff can not perfect his title without paying the amount due upon them all.

The bill must, therefore, be

Dismissed with costs.