Fessenden v. Taft

• Decision Date: 15 March 1889
• Citation: 17 A. 713,65 N.H. 39
• Parties: FESSENDEN v. TAFT et al.
• Court: New Hampshire Supreme Court

17 A. 713

65 N.H. 39

FESSENDEN

v. TAFT et al.

Supreme Court of New Hampshire. Hillsborough.

March 15, 1889.

Bill in equity to foreclose a mortgage of land in New Hampshire, given to secure a promissory note for $4,000, made in Massachusetts by George Taft, and payable to the plaintiff; both Taft and the plaintiff being at the time residents of Massachusetts. Facts found by a referee. The consideration for the note was in part a prior indebtedness of $2,200 from said Taft to the plaintiff, and it was agreed that the balance of $1,800 should be retained by the plaintiff until the release of an attachment upon the premises made in a suit brought by one Roberts against said Taft. Afterwards, said Roberts having prevailed in the suit, the plaintiff paid him the $1,800, and the attachment was dissolved. In pursuance of a verbal agreement between said Taft and the plaintiff, interest was reckoned and paid on the note at various rates higher than 6 per cent., during various periods ending April 28, 1883, when the last payment was made. Pub. St. Mass. c. 77, § 3, provides as follows: "When there is no agreement for a different rate, the interest of money shall be at the rate of six dollars upon each hundred dollars for a year, but it shall be lawful to pay, reserve, or contract for any rate of interest or of discount; but no greater rate than that before mentioned shall be recovered in any action, unless the agreement to pay such greater rate is in writing." The defendant James Taft claims to own one undivided half of the Jordan lot, which is part of the premises in controversy, together with the barn on the lot. The land was paid for by George and James Taft, James paying one-half, but when did not appear. The barn on the lot was built by the firm of James Taft & Co., which firm was composed of James, George, and Albert Taft, and was sold on the decease of Albert Taft, as personal property, by the surviving partners, and purchased by James Taft, who has since occupied it. The referee finds that it is personal property. Some evidence was introduced by the defendants to show title in James Taft by adverse possession to one undivided half of the Jordan lot, and the referee reported certain facts to the court, submitting the question whether upon these facts such title had been acquired. The plaintiff was allowed to testify to conversations and matters between him and George Taft pertaining to the note and mortgage, and the defendant excepted.

D. Cross, for plaintiff. R. M. Wallace and H. J. Taft, for defendants.

CLARK, J. The note, being a Massachusetts contract, is governed by the law of Massachusetts. The mortgage, although executed in Massachusetts by citizens of that state, being a conveyance of land in New Hampshire, is controlled by the law of New Hampshire. The consideration of the note being an indebtedness of the maker to the payee of $2,200, and a promise of the payee to pay to the maker $1,800 when the mortgaged premises were released from attachment, was sufficient, and the mortgage is valid by the law of New Hampshire. The amount of the advance, ($1,800,) the contingency upon which it was to be made, and the obligation of the mortgagee to make it, were definitely agreed upon at the...