Stebbins v. Robbins

38 A. 15, 67 N.H. 232

Opinion

Allen, J.

In many cases the law regards a mortgage as assigned, even if it is formally discharged; and in many cases it is-discharged in law, notwithstanding a formal assignment. Fletcher v. Chamberlin, 61 N. H. 438, 468, and cases cited. Here was a formal discharge, and no claim of an assignment. In a writ of entry to foreclose a mortgage formally and intentionally discharged, the plaintiff contends that he is not barred by the discharge because he executed it under a matérial mistake of fact. Whether equity requires that he should be relieved, and his discharge cancelled or treated as invalid, is a question that should be tried upon a full consideration of all the evidence bearing upon it. There has been no such trial, and it is doubtful whether the question can be tried in this suit at law. If counsel think a bill in equity necessary, it can be filed as an amendment of the declaration, all parties interested being made parties. All material facts not being found (2 Jones Mort., ss. 870, 873, 966, 969), the caséis discharged.

Case discharged.

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