Hazelton v. Batchelder , 44 N.H. 40 ( 1860 )

Bartlett, J.

In the absence of conclusive evidence the jury might have found that the plaintiffs relinquished their attachment, upon- the agreement that the defendant should mortgage the real estate to secure Clement’s debt to them; and also that the defendant’s name was subscribed to the note without her knowledge or consent by Mrs. Clement. If the jury had so found, it could hardly be claimed that the defendant was estopped to deny the signature by this transaction, for no act, representation, or neglect of hers as to the note, could be held to have induced the plaintiffs to relinquish their attachment. They would have obtained all the security they were to receive in consideration of releasing the attachment, without her signature to the note. The fact that she subsequently took possession of the mortgaged personal property is not shown to have induced the plaintiffs to alter their situation or conduct in any respect, or even to have come to their knowledge before the commencement of this suit. The mere fact of the possession or sale of such property is not necessarily inconsistent with her right to disavow the note; but if, knowing the amount of the note, and the fact that her name had been affixed to it by Mrs. Clement, she took or held possession of any of the mortgaged property as mortgagee under the mortgage, we think that would be a ratification of the note. Her right to hold the property under the mortgage was simply a right to hold it to indemnify her for signing the note; and if she had not signed the note she had no right to hold the property under the mortgage. Her possession of the property under the mortgage, after she had full knowledge in regard to the amount and signature of the note, would, therefore, be inconsistent with her repudiation of that signature. Dispatch Line v. Bellamy, 12 N. H. 237; Story Agency, secs. 253, 254; Broom Leg. Max. 676; Dana v. Coombs, 6 Greenl. 89. "Whether the defendant did so take or hold possession of the mortgaged property was, upon the evidence in this case, a question for the jury. If such a ratification was at any time made by the defendant, it could not afterward be revoked by her. Story Agency, sec. 250. If the defendant, knowing the amount of the note, chose to ratify it, in the absence of fraud it is immaterial whether she knew how that amount was made up. Rice v. Dwight, 2 Cush. 87. The verdict must be set aside, and a

New trial granted.