Largey v. Taylor , 75 N.H. 211 ( 1909 )

More than one witness to an entry for condition broken is unnecessary. Thompson v. Ela, 58 N.H. 490, 493. Section 16, chapter 139, Public Statutes, simply provides an additional method by which evidence of entry, possession, and publication may be preserved. Farrar v. Fessenden,39 N.H. 268; Wendell v. Abbott, 43 N.H. 68, 73. But for the statute, proof of these facts could only be made pursuant to the rules of the common law. Seely v. Insurance Co., 72 N.H. 49, 55-57.

The mortgagee's entry was without force or violence and was unopposed. The possession so taken was not disturbed by the mortgagor or any one in her right, but the mortgagee remained in possession, exercising dominion over the premises as detailed in the evidence. The trial court found that the entry was peaceable, and that the defendant, after the date of the entry, for more than a year had continued, actual, peaceable possession. The only fact urged as inconsistent with these findings is that on the day of entry the mortgagee's agent did not go into the house or barn, which were locked, the keys being in the possession of the mortgagor, whose furniture was in the house. The entry without force, violence, or opposition was peaceable. Thompson v. Kenyon, 100 Mass. 108, 111. In the absence of any interruption of the possession so taken, the mortgagee's continued possession was properly found to have been peaceable. The only question, therefore, is whether what was done was sufficient to give the mortgagee possession of the portion of the land occupied by the house and barn, which were not entered until a few days later.

"When a man enters into land under a deed, . . . such entry will give him possession of all the land which the title under which he enters embraces; because he is presumed to enter, claiming according to his title. The bounds of his possession will be marked by the lines and monuments mentioned in his deed." Riley v. Jameson, 3 N.H. 23, 27; Breck v. Young,11 N.H. 485, 492; Bailey v. Carleton, 12 N.H. 9, 15. The entry into the premises under the mortgage was an entry upon, and gave the mortgagee possession of, all the land embraced in the mortgage. Green v. Pettingill, 47 N.H. 375; Colby v. Poor, 15 N.H. 198; Hawkes v. Brigham, 16 Gray 561, 565; Jones Mort., s. 1254. Under the Massachusetts statute, the retention of such possession obtained by peaceable entry into a part operates as a foreclosure upon the whole, even if the mortgagor remains in occupation of part, performing various acts of ownership. Fletcher v. Cary,103 Mass. 475; Lemon v. Porter, 5 Gray 318; Bennett v. Conant, 10 Cush. 163. But in this state, by the general understanding of the meaning of the statute, the presumed possession following upon the mere entry is insufficient to sustain a foreclosure, if such possession has been interrupted by the subsequent entry and occupation of the mortgagor or any one claiming under him, without actual recognition of or submission to the mortgagee's foreclosing possession. Bartlett v. Sanborn, 64 N.H. 70; Ray v. Scripture, 67 N.H. 260.

But the possession acquired by the mortgagee by the entry of her agent continued until there was an entry in opposition. Wallace v. Goodall,18 N.H. 439, 449. No such entry has ever been made. Whatever might have been the effect of the mortgagor's retention of the keys to the buildings and the presence of the furniture in the house, if she had made entry or had attempted by reason thereof to exercise a possession in hostility to the foreclosing possession of the defendant, the mere presence of personal chattels and the existence of locks which the mortgagee did not find it convenient at once to force is not conclusive evidence of personal entry and actual possession by the mortgagor. The plaintiff had notice, constructive and actual, of the foreclosing entry and possession, and asserted no rights in opposition thereto until after the year. A constructive possession based on the keys and household furniture, if such could be found, would not as matter of law establish that the mortgagee's possession was not continued and actual. The finding of fact upon this point cannot be disturbed.

The bill admits the mortgagee's title, from which follows her right to the possession, but does not offer to redeem. It seems to have been convenient for the parties to determine in this proceeding the validity of the foreclosure, and the questions presented have been passed upon without considering whether they are properly raised.

Exception overruled.

All concurred.