Couch v. Stevens , 37 N.H. 169 ( 1858 )

Perley, C. J.

The first method provided by the statute for foreclosing an equity of redemption is, “ by entry into the mortgaged premises under process of law, and continued actual possession thereof for one year.” Comp. Stat. 292, sec. 14. The statute says nothing of holding possession under the process. The office of the process is to put the mortgagee in possession, according to the right which has been established by the judgment; the process, after it has been served, having performed its office, is returned into court, and not left in the hands of the mortgagee to hold, either as the foundation or the evidence of his right to the possession. He holds, not under the process, nor under the judgment, but under his title as mortgagee, which has been established by the judgment.

A foreclosure commenced by entry into the mortgaged premises under process of law, may be waived by the mortgagee, and a release of the judgment upon which the process issued may be competent evidence tending to show the waiver. But as the possession of the mortgagee after his entry, is held under his mortgage, and not under the process or judgment, a release of the judgment would not in law constitute a waiver of the foreclosure. Notwithstanding the release, the mortgagee might still retain the actual possession, for the purpose of foreclosing the equity of redemption; and if he did so for one year, the case would answer the terms, and, we think, the meaning and intention of the statute. When the judgment has been recovered and executed, by putting the mortgagee in possession under process, all has been done that the statute requires, and all that by legal proceedings can be done, to establish and assert the right of the mortgagee under his mortgage; and the foreclosure will not be defeated by arrangement of the parties respecting the judgment, provided the possession of the mortgagee was continued during the year for the purpose of foreclosing. We think, therefore, that it was properly left to the jury to decide, as matter of fact on all the evidence, which was conflicting, whether the possession was continued for the purpose of foreclosing the mortgage, notwithstanding the release of the judgment.

The objection on account of the variance between the description of the land in the judgment and in the execution, has not been insisted on in argument, and cannot prevail. The case finds that the description of the land in the execution was perfect without the omitted line, and the clerical error could have led to no mistake or misapprehension in the officer who served the execution, or in any other party.

Judgment on the verdict.