Moore v. Beasom , 44 N.H. 215 ( 1860 )

Nesmith, J.

The plaintiff’s claim to the hay in dispute must depend upon the validity of her title in the land where it was produced. ¥e propose to examine briefly one or two of the principal exceptions raised by the defendants to the plaintiff’s title.

1. It is alleged that the plaintiff had no legal right to redeem the mortgage made to the savings bank by Hartshorn & Ames, or, in other words, she had no interest to protect in this estate, so as to justify her proceedings. The general doctrine on this point is well stated by Washburn, (1 Real Prop. 553.) “Every person may exercise the right of redemption, who is interested in the mortgaged estate, or any part of it, having a legal estate therein, or a legal or equitable lien thereon, provided he comes in as privy in estate with the mortgagor. Among those who may redeem, are heirs, devisees, executors, administrators and assignees of the mortgagor, subsequent incumbrancers, judgment creditors, one having an easement in the land, &c. The owner of any interest, or fractional part, however small, of the mortgaged premises, may redeem it.” The plaintiff sets up her claim here as a privy in estate, being invested by virtue of the conveyances to her as assignee of the mortgagors, (1) under the quitclaim deed to her under the date of March 11, 1857; (2) by virtue of the re-conveyance of the same estate to Hartshorn & Ames, from S. M. Minasian, dated October 26, 1857. Admitting that the plaintiff’s grantor’s title may have been defective on the 11th of March, there appears to be no doubt that it was confirmed and ratified by the subsequent conveyance of October 26,1857. Confirmation and effect is thus given to the previous deed of the parties, by virtue of the power acquired under the second conveyance. There does not appear to have been any change in the mean time, any new rights acquired by others in the estate, or any rights injuriously affected; certainly nothing was done of which the defendants can justly complain. The law regards with favor all facilities given to prevent the forfeiture of mortgaged estates. All contracts made to lessen or embarrass the right of redemption are regarded with jealousy. Holudge v. Gillespie, 2 Johns. Ch. 34. Hence, we think, that, so far as these defendants are concerned, the plaintiff had acquired such a legal interest in the premises as she might protect and fortify by the payment of her money to redeem the premises.

Redemption will be decreed according to the priority of the claimants. If there are several mortgages the court will decree in detail that the second shall redeem the first, the third the second, and so on. 1 Hill, on Mortgages 93, sec. 62. The Indian Head Bank may have had a right to redeem in this case, paramount to that of the plaintiff; but that question is not presented here, as the bank does not interfere with the plaintiff. The instructions of the court to the jury were correct. It is manifest that the plaintiff, by the payment of her money, could not have intended any thing short of an assignment of the mortgage debt to herself, having paid it in full. She could not have intended the payment should operate as a discharge of the mortgage, thereby throwing away entirely and for ever her funds. It. was held in Forbush v. Goodwin, 25 N. H. 425, that nothing more is necessary to discharge the interest of a mortgagee, and revest the estate fully in the mortgagor, than the payment of the debt, or the performance of the- duty, the payment or performance of which the deed was intended to secure. A third person, discharging a bond and mortgage for his own safety, may be substituted in the place of the obligor or mortgagor, and retain the bond and mortgage. John G. Coster’s Case, 2 Johns. Ch. 504. In equity, the party entitled to an assignment of a mortgage may be regarded as subrogated to the rights of a mortgagee without the assignment of the deed of mortgage. Aiken v. Gale, 37 N. H. 505; Jenness v. Robinson, 10 N. H. 219; Parkman v. Welsh, 19 Pick. And this right of subrogation, though originally a doctrine of equity, has become recognized as a legal right. 1 Wash. Real Prop. 575; LaFarge v. Hester, 11 Barb. 159. There are numerous other authorities that hold that the payment of a debt secured by a mortgage may operate either as a discharge of the mortgage, or as an assignment, as may best subserve the purposes of justice.- Hastings v. Stevens, 29 N. H. 573; Hatch v. Kimball, 7 Shep. 9, and numerous authorities cited by both sides. Nor can there be any doubt about the power of the treasurer of the savings bank to receive payment of a note, and to surrender it to the payee, with the mortgage that secures it. Such a power is incident to his office, and is necessary to the just discharge of its duties. Cases will arise where the special votes of directors may become necessary to clothe the treasurer with necessary powers to render his conveyance valid, but that does not appear necessary here. The payment made by Harts-horn to Mr. Hughes, of the $60, being in part of the amount due on the sale of the equity of redemption on the execution in favor of G-. & S. McQuesten against Hai’tshorn & Ames, under the further agreement -that when the other sum of $14 was paid a full discharge of the execution should be given, including costs, and sale of the equity, should be so construed as to work no forfeiture of the plaintiff’s estate, or injury to the purchasers of the equity. The payment of the $60 may equitably operate to assign the interests which the McQuestens had in the land, to that extent, and under the agreement made with them they may rightfully hold the estate, or equity of redemption, in trust for said Hartshorn or his assignee, subject to the payment of the $14 and interest thereom Page v. Pierce, 26 N. H. 317. As the plaintiff has been ready to pay this balance, and as it has now been brought into court, the-party will not suffer by this arrangement.

The receipt of a part of the debt due has been held to be a waiver of the foreclosure, and we think the same rule should be-established here. Deming v. Cummings, 11 N. H. 483 ; McNeil v. Call, 19 N. H. 403.

It seems to us that to hold that a forfeiture of the estate was ereated by the non-payment of the $14, under the circumstances shown here, would be doing manifest violence to the fair intent and meaning of the contract itself, as well as to the rights of the plaintiff. The rule proposed by the court secures to the McQuestens their money paid out, and the interest thereon, which appears to be what their attorney intended to stipulate for. Had the receipt or contract made certain the precise time when the $14 was to have been paid, then all doubt would have been removed. With these views upon the facts of the case, we think there should be

Judgment on the verdict.