Bryant v. Morrison , 44 N.H. 288 ( 1860 )

Bartlett, J.

Hiram K. Bryant’s equity of redemption was held by the attachment of the premises (Rev. Stat., ch. 184, see. 5; Eastman v. Knight, 36 N. H. 586); and when the demand was made by the officer this attachment was subsisting, for thirty days from the rendition of judgment had not expired (Rev. Stat., ch. 184, sec. 33); and though a levy was commenced on the day the demand was made, it was not completed until more than fifteen days afterward. The extent upon the land would have been good to pass the mortgagor’s title; Kelly v. Burnham, 9 N. H. 22; Hovey v. Bartlett, 34 N. H. 278; but here, no account having been rendered by the plaintiff within fifteen days after the demand, his interest in the premises ceased as against the attachment, and the rights acquired under it (Rev. Stat., ch. 184, sec. 7; Laws of 1845, ch. 233); and the execution could properly be extended upon the land. The law of this State must govern the title to this land. Story Conf. Laws, see. 424; 2 ¡Kent 429. If the plaintiff’ chose to take the mortgage, he must take it subject to these provisions of our statutes, which were at the time of the execution of the mortgage and still are in force. We need not inquire what would be the effect of a demand made upon a mortgagee resident out of this State, in a case where it would be impossible for him, by reason of his residence, to render an account within the fifteen days, if such a case can exist; for here the mortgagee resided in Massachusetts, and there appeal's no peculiar difficulty, certainly no impossibility, arising from this fact, to prevent his compliance with the statute. The description of the land in the demand is admitted to be correct, and it is sufficiently certain, and we think it is not objectionable merely because it does not make use of the terms of description contained in the mortgage. See Couch v. Stevens, 37 N. H. 175. According to the provisions of the case, there must be

Judgment for the defendant.