Rollins v. Brock

101 A. 636, 78 N.H. 456, 1917 N.H. LEXIS 37

• Court: Supreme Court of New Hampshire
• Decided: June 30, 1917
• Status: Published

Opinion

Young, J.

Notwithstanding the defendant cannot be compelled to accept a deed of the farm and reconvey it to the plaintiff in mortgage to secure the payment of his note for $1,500, the evidence excepted to was properly admitted for the purpose of showing how the plaintiff holds the farm. In other words, if this were a writ of entry and the plaintiff introduced the deed conveying the farm to him and rested, it would be competent for the defendant to introduce this evidence for the purpose of showing that the plaintiff held the farm (not including the timber) as security for a loan of $1,500.

The fact the defendant has repudiated his agreement does not give him any greater rights than he would have had if he were trying to enforce it, consequently the plaintiff is entitled to a decree in his favor. Whether it should take the form of a strict foreclosure or of a sale depends on which the court finds would be equitable. If the court finds there should be a strict foreclosure, it will fix a reasonable time within which the defendant must pay the plaintiff what is due him. If, however, it finds that there should be a sale of the property, it will appoint a commissioner to sell the farm and distribute the proceeds. Whichever form the decree takes, it should fix the exact amount due the plaintiff.

Case discharged.

All concurred.