Ricker v. Blanchard , 45 N.H. 39 ( 1863 )

Bellows, J.

On this case several questions arise:

1. Whether the plaintiff’s title, as mortgagee, ceased, as against these defendants, by a failure to render an account upon due demand made.

2. If not, did he make a valid tender of the amount due on the mortgage to the Association within the year ?

3. Or, if not, will equity under the circumstances relieve him against a forfeiture ?

1. The demand of an account states, that the deputy sheriff Aras in his hands an execution which he is about to levy on David Ricker’s real estate in Manchester, but does not state that he had levied upon it.

The statute authorizes the attachment of equities of redemption. Comp. St. ch. 195, secs. 1 and 2, and provides that such creditor, or the officer serving the writ, may demand of the person holding the mortgage an account on oath of the amount due him, &c., but we think that it is only after such attachment that the demand can be made under this statute. Until that is done, the creditor has no interest in the land or lien upon it, and has, therefore, no interest in the redemption. He is, then, in no condition to require the mortgagee, under the penalty imposed by that statute, to render an account, and it would seem to follow, of course, that, in making a demand, the creditor, or officer, should set forth his title to make it; or, in other words, that he had attached, orlevied upon, the land, and had thus acquired a lien upon it and a right to redeem it.

This statute is highly penal in its character, and a party ought not to lose his security unless he is brought clearly within its provisions. The authority, therefore, of the creditor to demand an account, should be set forth, and with reasonable certainty and distinctness, that the mortgagee may see that he is bound by law to comply; and as no such authority is disclosed in this demand, we think it is insufficient.

These views-are fully recognized in Farr v. Dudley, 21 N. H. 372, where it is laid down that the attaching creditor should be held to comply with all the substantial requisitions of the statute; and for the reason that the demand did not state the time of the attachment, when an account of the amount due up to that time was called for, the demand was adjudged to be insufficient, inasmuch as it was regarded as unreasonable that the mortgagee should be compelled to search the records to ascertain that time. The doctrine of Farr v. Dudley, is also recognized in Gilmore v. Gale, 33 N. H. 410. In Phelps v. Gilchrist, 28 N. H. 266, it is held that in a -written demand by a deputy sheriff, of a receipter, his authority should be disclosed, when the receipt was given to another officer.

The extension of that doctrine to the objection here that the residence of the officer was not disclosed, might also prove fatal to the demand; but of that we give no opinion. Nor is it necessary to consider whether a demand sent by mail, as this was, is sufficient, although in the case of an ordinary demand it is held not to be. Whittier v. Johnson, 38 N. H. 164, and cases cited.

Nor do we think that the objections to the demand were waived by the imperfect account rendered by the mortgagee.- There might be cases where, in furtherance of justice, the law might regard a defect in the previous proceeding, as waived by entering without objection, upon the subsequent steps, as is often held in proceedings in courts of justice; but in this case the attempt is to enforce a penalty, and the creditor may reasonably be held to a strict compliance with the requirements of the statute. Gilmore v. Gale, 33 N. H. 418. Notwithstanding the mortgagee, from abundant caution, or other reason, has attempted to render an account, still, as the demand does not disclose any authority to make it, we think the law will not regard the defect as waived. Especially would this be so in equity, where it is an established principle that it will not lend its aid to enforce a penalty, or to divest an estate for breach of a condition subsequent. Smith v. Jewett, 40 N. H. 530.

There is nothing here that shows an intent to waive the objection; nor does justice require that it be so considered; neither is there anything in the nature of an estoppel of the mortgagee; for the creditor has a knowledge of all the facts, and it is for him to decide whether he has, or has not, complied with the requirements of the statute; nor can it be said that he has been misled by the mortgagee and thereby induced to change his position. Eor this view of the defendants we are referred to no adjudged cases, nor are we able to find any that sustains it.

The result is, that the plaintiff’s mortgage was not discharged, as respects the defendants, by tins demand for an account and the failure to render one within fifteen days; and the next question is (2), whether a valid tender of the amount due on the mortgage to the Loan and Fund Association was made; and this depends upon the questions whether the tender was sufficient in respect to time and amount.

The law provides, Comp. St. ch. 137, sec. 14, that the right of redemption may be foreclosed by entry under process of law and possession for one year, or " by peaceable entry into the mortgaged premises and continued, actual, peaceable possession thereof for the space of one year, and by publishing,” &c., or by the mortgagee in possession giving notice that such possession is holden for the purpose of foreclosing the right to redeem, and by retaining actual, peaceable possession thereof for one year after such notice, and by publishing, &c. In this case, the foreclosure set up was in the second mode, by entry on the third day of October, 1859, and possession for one year.

If, then, the day of the entry is to be excluded, it is clear that the year did not expire, at least, until the close of the third day of October, 1860; and this depends upon the construction given to the 25th section of chapter 1, of the Revised Statutes, relating to the construction of statutes. If this space of one year is to be reckoned from the act of the entry, in the sense of the terms used in that section, then the day of that entry is to be excluded; and we think, that, by force of the law relating to foreclosures, the time is to be reckoned from the act of such entry; that is, the possession is to be one year from and after that act.

It is true that this is not stated in express terms, but it is necessarily implied, and the space of one year is to be reckoned from the entry. So, in case the mortgagee is already in possession, he may give notice of his pm-pose to hold to foreclose the mortgage; and then the time is to be reckoned from the giving of such notice.

In the case of town meetings where the warrant must be posted " fifteen days before the day of meeting,” it is decided that the time of posting is excluded. Osgood v. Blake, 21 N. H. 550, citing Grafton Bank v. Kimball, 20 N. H. 107, as having decided the question in the same way, as was the fact, though not fully reported.

These decisions we think are decisive of the question before us. In the one case, the notice is to be posted fifteen days, and, in the other, there must be continued possession for one year; and, for aught we can see, the principle that would exclude the day of the posting, must also exclude the day of the entry; for in neither is it expressly provided that the time shall be reckoned from the day or time of the act, although in both this is necessarily implied. So it is held in respect to the service of writs and other process, when they are to be served "fourteen days before the sitting of the court,” and then both days are excluded in the computation of time.

In the sale of personal property on execution, where it is provided that it shall be kept four days at least, it is held that the day of the seizure shall be excluded. See Lefavour v. Bartlett, 42 N. H. 555; Derry Bank v. Webster & al., Rockingham County. See also Scovill and wife v. Holbrook, 22 N. H. 269. See also Leavitt v. Simes, 3 N. H. 14, where it was held, that, in the case of a promissory note payable in a given number of days/ without saying more, the day of the date should be -excluded.

The act referred to provides that, " When time is reckoned from any day or act done, or the time of any act done, either by force of law or by virtue of any contract hereafter made, such day, date, or the day when such act is done, shall not be included in the computation;” thus abolishing the distinction which had existed in cases where time was to be reckoned from any act done, or the time of an act, on the one hand, and date, or the day of a date on the other; and excluding, in both cases, the day from which the time was to be computed.

The purpose of this act was to establish an uniform rule of computation so far as it might be done, and the courts would be slow to engraft upon it any distinction that should tend to renew the perplexities that formerly existed.

In the very ingenious argument of the counsel for the defendants, it is contended that tins case does not come within the provisions of the construction-act, because the year’s possession required by the act is a continuing fact and concurrent with the act of entry and not following it, and he likens it to the case of the computation of the age of a person, in which he contends that the day of his birth is to be included. It is quite probable that the terms of a contract or a statute may be such as to include the day of the commencement of the period to be computed; but, to receive such a construction, the language, we think, ought, at least, to be explicit, and much more so than any thing we find here.

In the second mode of foreclosing a mortgage, which is the one under consideration, there must be a peaceable entry and a continued possession for one year, and it is manifest that the time is to be computed from that entry.

That entry may have been at the commencement or near the close of a day, and there would be the same reason for excluding that portion of a day as in any other case; otherwise it might happen that the possession would actually be nearly one day .short of a full year.

This view is confirmed also by the provisions made for the third mode of foreclosing mortgages, when the mortgagee is already in possession, and gives notice to the mortgagor that he holds possession for the purpose of foreclosing the mortgage; then, by retaining possession one year after such notice and the proper publication, a foreclosure is effected.

In this case it is clear that the time is to be reckoned from the notice, and the day when it is given must be excluded. That being the case it is not reasonable to suppose that a different mode of computation was intended in the other modes of foreclosure.

It is, of course, not very material in this, or in most other cases, whether these fractions of days are included or excluded in the computations of time: but it is extremely important that the rule should be stable and uniform, and such, obviously, was the purpose of the law in question.

The case put by the counsel, of .the computation of the age of a person, is undoubtedly a strong one in illustration of his view that there may be cases that do not come within the provisions of this act. By usage the day of one’s birth is so far reckoned that on that day, as the birth day, the years are understood to be completed; but at what time in that day, under our present statute, would require some consideration. But, however that may be decided, we are satisfied that the case before us comes within the act in question. The case of Fuller v. Russell, 6 Gray 128, is in accordance with these views, and is directly in , point. There, in computing the three years’ possession required to foreclose a mortgage, the day of the entry was excluded.

It being, then, found that the tender was made within the year, the question is whether it was sufficient in amount, or whether under the circumstances the plaintiff should be allowed to redeem.

Without stopping to inquire whether the amount tendered was eight or ten dollars less than the amount due, we think that upon the principle recognized in Abbott v. Banfield, 43 N. H. 153, this is a case for equitable relief. It appears, from the evidence, that the plaintiff tendered the sum paid by the defendants to the Association to procure an assignment of the mortgage, and which was understood to be the amount really and justly due, as shown by the books of the Association, and which the Secretary testifies was the sum claimed by it to be due, including ten dollars for the expenses of taking possession of the property for the purpose of the foreclosure, and for advertising, &c.; and that he also tendered the interest on that sum from the time of payment to the tender.

This, with the fact that at the time of the tender, which was made to one of the defendants, he did not decline it because of the amount, or claim any larger sum, makes a strong case for equitable relief within the principle of Abbott v. Banfield, and cases there cited.

It is a clear case of an attempt in good faith to pay the entire amount of the mortgage debt under circumstances that strongly indicated the sum tendered to be the sum actually due; and without receiving, at the time of the tender or afterwards, any intimation that more was due; and, besides, the amount of the deficiency as now claimed is very trifling, being but little more than half of one per cent., or in all but eight or ten dollars.

Under such circumstances, and considering the intrinsic difficulty of ascertaining the exact amount due beyond the amount standing upon the books of the Association, it may well be claimed that the deficiency in the amount tendered, if any existed, was purely by mistake and accident, and that full compensation can be made. Indeed, it would seem to stand upon much the same ground as where the holder of the mortgage himself represents to the person having the equity of redemption, the amount due to be less than it actually was; for, in this case, the amount due was computed by the defendants’ assignors, entered on their books, treated as the amount due by the assignees, and the same amount with interest tendered by the plaintiff — indicating his knowledge that this was understood by the parties to be the sum due.

To allow the plaintiff's equity to be defeated by a new computation, increasing in a trifling degree the amount due, would be contrary to good conscience, and wholly inconsistent with well established doctrines of courts of equity. Skinner v. Dayton, 2 Johns. Ch. Rep. 533; Baxter v. Lansing, 7 Paige’s Ch. 352; Henry v. Tupper & al., 29 Vt., 358; Reynolds v. Pitt, 19 Sumner’s Vesey, n. a. & b. and cases cited; Bracebridge v. Buckley, 2 Price 200.

In this case the right of redemption would, at law, be regarded as foreclosed, if the amount tendered was less than the amount due; but it was by entry, possession, and notice, without process, and not by judgment at law; and we think a bill in equity would lie to relieve against the forfeiture, upon the ground of fraud, accident, or mistake, the same as if the equity of redemption had not been so foreclosed, although in cases where the relief must depend upon the sound discretion of the chancellor, the fact of such foreclosure would be considered.

Before the statutes allowing the redemption of mortgages after condition broken, and empowering courts of law to chancer them, the right of redemption at law was gone upon the expiration of the time limited without performance of the conditions; and yet courts of equity have been for a long time constantly in the habit of furnishing relief in such cases. 2 Story’s Equity Pl. sec. 1013. And, in respect to foreclosures under our statutes, courts of law in this State have acted upon equitable principles and held such foreclosures to be Avaived or invalid when the mortgagee had afterwards received all or even part of the mortgage debt. Batchelder v. Robinson, 6 N. H. 12; Converse v. Cook & al., 8 Vt., 164; Deming v. Comings, 11 N. H. 483. So, in the latter case, it Avas held, that the equity would be kept open by an assignment just before the expiration of the right to redeem, Avith a vieAv to prevent a redemption ; or even if so assigned without fraud, the equity would be kept open until the mortgagor had reasonable time to find the assignee. So when the mortgagee, being summoned as the trustee of the mortgagor, brought forward the mortgage claim as an unpaid debt. Crane v. Claremont Iron Foundry Co.; cited in McNeil & al. v. Call, 19 N. H. 416. So in Hall v. Cushman, 14 N. H. 171, where upon inquiry by the second mortgagee of the first mortgagee, as to the amount of his claim, he was told by the latter that he did not expect to look to the mortgage for. indemnity, but if there should be a small balance he would notify him; and afterwards, without giving any other notice than the publication in the newspaper, he entered and foreclosed his mortgage; and it was held, on petition to redeem, that, as to the second mortgagee, this foreclosure was invalid.

In McNeil & al. v. Call, 19 N. H. 402, which was a bill in equity to redeem, and it appeared that the agent of the mortgagee who was in possession for the purpose of foreclosing the equity, agreed verbally with the mortgagor that if he would pay the debt at a certain time subsequent to the expiration of the year, no advantage should be taken of the foreclosure, and the mortgagor, at the time fixed, tendered the amount, it was decided that the forfeiture was waived and the foreclosure opened.

The same doctrine was held in Quint v. Little, 4 Greenl. Rep. 495; which Avas also a bill in equity, but the agreement was in writing. See, also, Pierson v. Noyes, 15 Vermont 93. So it is held where the mortgagee has neglected or refused, on demand, to render an account of the amount due. Wendell v. N. H. Bank & al., 9 N. H. 404; Bellows v. Stone & al., 14 N. H. 175.

These authorities show that there is nothing in the character of a foreclosure, under our statute, by possession and notice, that stands in the Avay of relief in equity upon the ground of fraud, or accident, against the forfeiture, and we are satisfied that the plaintiff is entitled to the relief he seeks.

Should the exact amount due hereafter become material in respect to costs, although it does not appear that the amount tendered is brought into court, an account may be taken for that purpose, and also of the rents and profits unless rendered unnecessary by the payment of the plaintiff’s mortgage debts, which the defendants, as it would seem, have the right to make, and Avhich, in their ansAver, they propose to do, if the plaintiff is found entitled to a decree.

No decree, however, that the defendants may redeem, can be made in this suit, but it is presumed that the parties, Avith the aid of the suggestions noAv made, Avill adjust the remaining questions.

If not there must be a decree for the plaintiff.