Green v. Davis , 44 N.H. 71 ( 1860 )

Bartlett, J.

The second mode of foreclosure provided by our statute (ch. 1531, sec. 1) is, “ by peaceable entry into the mortgaged premises, and continued, actual, peaceable possession thereof for the space of one year, and by publishing in some newspaper,” as specified in the act, “ three weeks successively, a notice stating the time at which such possession taken for condition broken corn-' menced, the object of such possession,” &c., “ the first publication to be six months befoi’e the right to redeem would be foreclosed.” The notice of November, 1856, so far from stating the time at which the possession taken for condition broken commenced, does not state that possession was ever taken for condition broken, and it does not show that the object of the possession was a foreclosure of the mortgage. These defects are not supplied by its statement that Green then claimed a foreclosure of the mortgage for condition broken, because of his alleged taking of quiet possession on the 5th of August; for it is not to be infen’ed from the fact of the claim that it was well founded, or that he took possession for condition broken, aud for the purpose of foreclosure. Morrison v. Day, 37 Me. 388. As there was not competent evidence of the publication of notice, according to the statute, the jury could not legally have found a foreclosure. An agreement by the plaintiff with Paine and Hastings, in consideration of their executing to him the instrument purporting to put him in quiet possession of the mortgaged premises, and containing their covenant not to enter thereon or permit others to enter ^without his consent, until they should have fulfilled the condition of the mortgage, and that the plaintiff would, if the lands were not redeemed within a year from the commencement of his foreclosure, look to them only to pay the notes, would not seem to operate as a satisfaction of the debts, any more than would a covenant not to sue. Story on Notes, sec. 409. It furnishes here po evidence of payment, being at most but an unexecuted agreement that the plaintiff would take the lands in payment, for his title has not become absolute ; and therefore the evidence fails to show that the lands were received in satisfaction of the debts. We do not think the jury could have properly found a satisfaction of the debts by reason of the transaction of August 5, 1856. The only thing received by the plaintiff was the instrument executed by Paine and Hastings; and there is no evidence that this, or their attempted surrender of joossession by means of this, with their covenant not to enter or permit others to enter, &c., was received in satisfaction of the notes. On the contrary, by the terms of the agreement the notes, if not otherwise satisfied, were still to be paid by the lands. 2 Pars. Cont. 194; Woodward v. Miles, 24 N. H. 294. Nor could this agreement avail the defendant by way of estoppel, for he was neither party nor privy to it. Co. Lit. 352, a; Com. Dig., Estoppel, c. It becomes unnecessary to inquire whether any of the evidence offered to show a foreclosure was objectionable on other grounds. This verdict was taken by consent, expressly subject to the exceptions stated in the case, and, therefore, although there was conflicting testimony upon some other points, we have not felt called upon to examine them at this time. The verdict must be set aside and a

New trial granted.