Walker v. Chessman

• Decision Date: 02 June 1908
• Citation: 70 A. 248,75 N.H. 20
• Parties: WALKER et al. v. CHESSMAN.
• Court: New Hampshire Supreme Court

70 A. 248

75 N.H. 20

WALKER et al.

v. CHESSMAN.

Supreme Court of New Hampshire. Coos.

June 2, 1908.

Transferred from Superior Court, Coos County; Wallace, Judge.

Bill by Mary E. Walker and others against Roswell C. Chessman to redeem from certain mortgages.Transferred from the superior court on facts found by the court.Case discharged.

The plaintiffs are the children and heirs at law of Annie and Thomas Gorman.April 16, 1890, the defendant conveyed! to Annie certain real estate in Northumberland, and on that date she, with her husband, executed a mortgage of the premises to secure the payment of $300, the whole or a part of the purchase price.On April 12, 1892, they executed a second mortgage to the defendant to secure the payment of a note for $100.Annie died July 30, 1894.August 2, 1894, Thomas executed a quitclaim deed of all his interest in the premises to the defendant, but remained in possession thereof until January 23, 1895.September 27, 1894, the defendant began a suit to foreclose the mortgages against Thomas, and at the October term, 1894, recovered conditional judgment against him for the premises.Thomas was the sole defendant, and notice of the foreclosure suit was given only to him.A writ of possession was duly issued upon the judgment, and January 23, 1895, the defendant was given seisin and possession of the premises under the same, and has since been in possession, receiving rents and profits.Thomas died November 20, 1900.Some of the plaintiffs were minors during the foreclosure proceedings.The question was reserved whether their right to redeem was barred.

Bernard Jacobs, for plaintiffs.

Drew, Jordan, Shurtleff & Morris, for defendant.

WALKER, J.The plaintiffs are entitled to redeem the land from the mortgages, unless it has been foreclosed; and the question presented by the record is whether the defendant's possession of the premises for one year, after he was put in possession under legal process, is binding upon the plaintiffs and foreclosed their right to redeem.As they were not parties to the writ of entry, it is not claimed that they were bound by the judgment issued therein; and whether or not they were so bound is not a material question in this case.The judgment did not have the effect of foreclosing the mortgage.The mortgage subsisted after the judgment as before, and could only be foreclosed by the defendant's possession continued for a year (Pub. St. 1901, c. 139, § 14); and his possession would be held, not under the judgment, but under and by virtue of the mortgages.Couch v. Stevens, 37 N. H. 109;Hall v. Hall, 46 N. H. 240, 243;Ray v. Scripture, 67 N. H. 260, 29 Atl. 454.The mortgages vested in him "the seisin as well as the title of the demanded premises"(Perkins v. Eaton, 64 N. H. 359, 360, 10 Atl. 704), and, when he elected, as he had a right to do, to treat Thomas, who was, in the actual occupancy of the land, as a disseisor, his subsequent possession was in accordance with the right granted to him by the mortgagors.He acquired no new right of possession by the judgment, any more than he would if he had taken peaceable possession under the statute.Couch v. Stevens, supra.For the purpose of recovering the possession in a writ of entry upon a mortgage against a disseisor, it is not necessary that the mortgagor out of the actual possession should be notified by the formal service of process, though he might be permitted to appear and defend against the action.Hall v. Hall, 46 N. H. 240.The fact, therefore, that the plaintiffs were not parties to the writ of entry against Thomas, does not show that the defendant's possession under the execution was wrongful or void as to them.It was what was granted to him by the mortgage deeds.

Nor can it be successfully contended that the defendant's possession and its continuance for a year was without notice to the plaintiffs.They knew, or are presumed to have known, that Thomas, one of the mortgagors, had occupied the premises and received the Income from the death of their mother to January 23, 1895, the date when the defendant was put in possession, and that upon that date Thomas was evicted and the defendant entered.In other words, they knew that a radical change in the occupation of the premises had occurred; that the defendant, their mortgagee, was in the exclusive possession; and that Thomas, a part owner of the equity of redemption, had been excluded therefrom.They were put upon inquiry as to the character of the defendant's possession, and it is plain that, upon reasonable investigation, they would have...