Frye v. Hubbell

• Decision Date: 05 November 1907
• Citation: 74 N.H. 358,68 A. 325
• Parties: FRYE v. HUBBELL et al.
• Court: New Hampshire Supreme Court

68 A. 325

74 N.H. 358

FRYE

v. HUBBELL et al.

Supreme Court of New Hampshire. Sullivan.

Nov. 5, 1907.

Transferred from Superior Court, Sullivan County.

Mortgage foreclosure proceedings by Napoleon B. Frye, executor, against Abbie A. Hubbell and W. W. Hubbell. Nonsuit was granted as to defendant W. W. Hubbell, and, from a directed verdict for plaintiff, defendant Abbie A. Hubbell excepted. Exceptions sustained, and new trial granted.

Plea, the general issue, and a brief statement, as follows: That the action did not accrue within 20 years of the date of the writ; that the defendants had not disseised the plaintiff within 20 years; that the plaintiff was never seised of the premises; payment; accord and satisfaction; that the action was not brought within two years of the original grant of administration; that the plaintiff's mortgage was subject to a prior mortgage to the Newport Savings Bank, which had been foreclosed, and the title had come to the defendant Abbie A. Hubbell. Tfial by jury. Under instruction from the court, a verdict was returned for the plaintiff. The evidence tended to prove the following facts: December 16, 1879, the defendants, Abbie A. and William W. Hubbell, executed a mortgage of the demanded premises to John M. Wakefield, the plaintiff's testator, to secure their promissory note for $600, signed by Abbie A. as principal and William W. as surety. The premises were then incumbered by a mortgage to the Newport Savings Bank, to which the Wakefield mortgage was made subject. Otis S. Johnson purchased the bank mortgage for value, and on May 13, 1886, his administrator was put into possession of the premises by virtue of a writ of possession issued upon a judgment against these defendants in a suit brought by Johnson on the bank mortgage. The delivery of possession appeared from the sheriff's return upon the writ of possession. Wakefield was not a party to the suit. November 18, 1890, Johnson's administrator, in consideration of the payment of $1,692.57, conveyed the premises by quitclaim deed to Ida E. Brigham, who quitclaimed them on October 6, 1903, to her sister, Abbie A. Hubbell. Abbie A. was never actually put out of possession of the premises, but continued to collect the rents and treat the property as her own, paying interest on the bank debt owned by the Johnson estate up to the time of the conveyance to her from her sister. She never had a lease of the premises, nor paid rent Wakefield died February 3, 1900. The plaintiff was appointed executor February 12, 1900, and brought this suit on January 16, 1905. The Wakefield note was further secured by a mortgage of real estate in Enfield, which was discharged on November 23, 1893, upon payment to Wakefield of $293.03, that sum being realized from a sale of the premises. The note bore the following indorsement: "$292.03. Nov. 28, 1893. Received of Abbie A. Hubbell $293.03 from sale of Enfield property as part of the within note." There was evidence that William W. Hubbell made two payments on the note, one of $20, and one of $25; that Abbie A. paid $300 about November 28, 1893; and that Wakefield agreed, at the time of the latter payment, to accept said payments, together with that indorsed on the note, in full satisfaction and payment of the debt. At the close of all the evidence, a motion for a nonsuit as to William W. Hubbell was granted. A motion for a nonsuit and verdict in favor of Abbie A. Hubbell was denied, subject to exception. The latter motion was upon the grounds (1) that the action was not brought within two years after the original grant of administration to the plaintiff, (2) because the action was not brought within 20 years after the right of action accrued, and (3) because of the foreclosure of the bank mortgage. There were no exceptions to the charge to the jury. After being out 18 hours, the jury were unable to agree as to how much had been paid on the note, or as to the alleged agreement that the sums paid were accepted in full payment of the note and satisfaction of the debt. Thereupon the plaintiff consented to admit the several payments claimed by the defendants. The court withdrew the instructions previously given, instructed the jury that an agreement on the part of Wakefield to accept the payments in full satisfaction and discharge of the note would be no defense to a suit for the balance, and directed them to return a verdict for the plaintiff for the amount due on the note after applying the payments claimed by the defendants. To this instruction and direction of verdict the defendant Abbie A. excepted.

Frank O. Chellis, for plaintiff. George R. Brown and Hosea W. Parker, for defendants.

PARSONS, C. J. The only questions of law transferred are those raised by the exceptions to the denial of the motion for a nonsuit and verdict in favor of Mary A. Hubbell, to the verdict directed for the plaintiff against her, and to the final instructions given the jury as to the effect of evidence that certain sums were paid and accepted in full satisfaction of the debt.

There was no error in the denial of the motion for a nonsuit and verdict Section 6, c. 191, Pub. St. 1901, suspends in favor of the executor the running of the statute of limitations as to all rights of action existing in favor of the deceased at his death, if suit is brought within two years. It does not bar an action otherwise maintainable, brought after two years from the date of administration. Morse v. Whitcher, 64 N. H. 501, 15 Atl. 207. As to the two other grounds upon which the motion for a nonsuit was placed—that the action was not brought within 20 years after the right of action accrued, and the alleged foreclosure of the prior bank mortgage—the most favorable view of the case for the defendant is that the evidence presented questions of fact upon which a jury might find for her. Although 20 years' unexplained and undisturbed possession by the mortgagor bars the right of the mortgagee to the land, upon the presumption that the mortgage debt has been paid or had no valid existence, this presumption is repelled by any act recognizing the validity of the mortgage. Tripe v. Marcy, 39 N. H. 439, 449, 450; Green v. Cross, 45 N. H. 574, 584; Clark v. Clough, 65 N. H. 43, 78, 23 Atl. 526; Martin v. Bowker, 19 Vt. 526, 527. Whatever the legal conclusion might be, if the only evidence of payment was the indorsement of the sum received from the proceeds of other property mortgaged to secure the same debt, the case does not rest on this evidence. There was other evidence as to this payment, and the defendant claimed to have made other payments. Whether they were made, and whether either was so made as to constitute a recognition of the validity and existence of the mortgage, was a question upon which the evidence was not conclusive in favor of the mortgagor. As to the remaining ground, the evidence conclusively established the entry of the prior mortgagee and that possession was taken by him for the purpose of foreclosure. Wendall v. Mugridge, 19 N. H. 109; Lewis v. Blair, 1 N. H. 68. Whether the foreclosure was completed by a year's possession, by the occupation of Abbie A. Hubbell under the mortgagee, was a question of fact dependent upon the purpose and intentions of the parties. Ross v. Leavitt, 70 N. H. 602, 604, 50 Atl. 110; Thompson v. Paris, 63 N. H. 421, 423; Hall v. Hall, 46 N. H. 240, 243; Howard v. Handy, 35 N. H. 315, 325; Deming v. Comings, 11 N. H. 474, 479; Downer v. Clement, 11 N. H. 40; Gibson v. Bailey, 9 N. H. 168, 172; Gilman v. Hidden, 5 N. H. 30; Kittredge v. Bellows, 4 N. H. 424. Without reference to the soundness of the plaintiff's contention that foreclosing possession by the mortgagee could not be found from the evidence, the admitted fact that the occupation was by one of the mortgagors instead of by the mortgagee, and the controversy as to the character of such occupation, prevents the conclusion that as matter of law the mortgagee retained possession for one year so that the foreclosure became complete. No question is raised as to the right of Abbie A. Hubbell to possession under the bank mortgage if it was not foreclosed. The statement that the plaintiff's mortgage was subject to the bank mortgage qualifies the covenants of warranty on the part of the grantors, and establishes that the grantee had notice that his security covered only an equity of redemption. Lawrence v. Towle, 59 N. H. 28, 30. The original title of the two mortgagors is not stated. No facts appear as to the transfer of the bank mortgage interest in the property from Ida E. Brigham to the defendant Abbie A. Hubbell, except that it was by quitclaim deed. The determination whether this transaction effected a payment or discharge of the bank mortgage, or an assignment of it to the defendant Abbie, and whether she could insist upon payment by the plaintiff before he would be entitled to possession by virtue of his mortgage of the equity of redemption, would involve legal questions not raised or transferred, dependent upon facts not reported. As to this point, it must be concluded that the rulings at the trial term were satisfactory to the parties, or that no question was made, if any could be, because, as was suggested in argument, the property is sufficiently valuable to satisfy both mortgage debts if legally chargeable therewith.

There were no exceptions to the instructions to the jury as the case was first submitted to them. It therefore must be concluded that all questions of fact raised by the pleadings and evidence were correctly submitted. After being out a long time, it appeared that the jury were unable to agree as to the payments that had been made, or whether they had been accepted in full payment of the note and satisfaction of the debt. It is to be inferred that the jury had agreed on all questions presented by the evidence upon the issues involved in the trial, except the extent to which the debt had been satisfied and discharged. Upon...