Hall v. Hall , 46 N.H. 240 ( 1865 )

Perley, C. J.

The bill is brought by the party who claims to own the equity of redemption against the administratrix of the mortgagee and the tenant in possession. It states a tender, of the sum alleged to be due, prays for a liquidation of the amount due, for a decree that the administratrix idease the mortgage, for a discovery, and for an injunction against the suit at law. The demurrer raises the general question whether the bill cam be maintained.

The statute provides that the party, who has the right to redeem a mortgage, may pay or tender the amount due and may thereupon apply by petition for a decree of discharge and other relief. Com. St. 296, see. 5. And by another provision of the statute he may demand an account, and if no account, or a false account, is rendered, he may apply by petition to have the amount due ascertained. In both these cases a bill in equity may be substituted for the petition given by statute. Wendell v. The Bank, 9 N. H. 404, 416, 417.

In these cases, specially provided for by the statute, if the sum due was legally tendered, or a true account was not rendered on demand, there can be no foreclosure pending regular proceedings under the statute. In the present case, if the sum due was legally tendered, as is stated in the bill, the bill being projierly substituted for a petition, there can be no foreclosure» of the mortgage while this suit is pending. Wendell v. The Bank, qua supra.

Even if there were no tender, and no demand of an account, we think that the bill to redeem might be maintained, and that these special provisions of our statute do not supersede the general remedy in equity by bill to redeem, the difference being that the foreclosure is suspended when the course pointed out by the statute is pursued and the plaintiff is found to have been in the right. We do not here speak of the prayer for a discovery as we think the bill might be maintained independently of that. We are, therefore, of opinion that the demurrer must be disallowed.

The injunction prayed for against the suit at law must be refused.

The debt secured by the mortgage, as appears by the statements of the bill, has not been paid. The bill alleges the tender of a certain sum, and sets up a verbal contract to show that the interest, which appears to be due by the written contract of the mortgagor, should not be paid, and asks that the mortgagee shall be enjoined not to prosecute his suit at law for possession of the mortgaged premises until the matter in dispute shall be settled by the litigation in this bill. The bill is brought, not by the party who owes the debt and is bound to pay it, but by a purchaser of the equity, out of possession, and not accountable for the rents, who may abandon his claim at any time, even after a decree in this suit, and leave the mortgagee to his security on the land. The tender, admitting it to have been made, is no security for the sum tendered; for the money tendered is subject to the plaintiff’s control, and may be at any time withdrawn from the hands of his solicitor and otherwise appropriated.

Then, again, the land being in possession, not of this plaintiff, but in that of another party, an injunction against the mortgagee’s suit for .possession would be of no advantage to this plaintiff, so far as the income of the land is concerned. In that respect it certainly would be as well for the plaintiff that the mortgagee should take possession, and who would be bound to apply the income on the mortgage debt. Nor, if the plaintiff’s statements are correct, will possession by the mortgagee operate to the prejudice of the plaintiff: as respects a foreclosure, for if his statements are true, the foreclosure will be suspended during the pendency of this bill.

There is no necessity for an injunction against the suit at law in order to protect all the plaintiff’s rights; for even if possession by the mortgagee would be prejudical to him, and the plaintiff had a case, which showed that the mortgagee was not entitled to possession, by the well established practice in this State, the plaintiff on showing his interest would be admitted to defend in the name of the tenant. Child v. The Powder Works, 45 N. H. 547. And if the-question were as to the amount of the conditional judgment, he might, under the rule, make himself party to the inquiry, and the court, m that case, would have, under our statute, all the powers, equitable and legal, to allow the matters set up in this suit that they would have by bill in equity.

But the plaintiff can have no interest in the amount of the conditional judgment, unless he voluntarily makes himself party to the inquiry, in which the amount is fixed; for it is contrary to elementary principles that one should be bound or affected by any judgment or decree in a suit to which he is not a party; and there is nothing in our statute, which, by any fair construction, can be understood to intend that the conditional judgment in a writ of entry on a mortgage shall bind any but the parties to the suit.

When the tenant voluntarily yields possession to the mortgagee there is no need of a suit, for possession, voluntarily yielded and notified according to the statute, has the same effect as possession taken after suit and under process. The object of the suit is to put the mortgagee in possession under his mortgage, that by virtue of a year’s possession he may foreclose, but the nature and effect of his possession are the same in both cases. Kittredge v. Bellows, 4 N. H. 428; Gilman v. Hidden, 5 N. H. 30; Downer v. Clement, 11. N. H. 40; Couch v. Stevens, 37 N. H. 169. When the mortgagee is put in by process he does not continue to hold possession under the process, which is returned into court, but under his mortgage, as he does where the possession is taken by consent without process. In the suit, which he brings-to obtain possession, there is no decree or judgment establishing a foreclosure. The same evidence of a continued possession for a year is required in case of an entry under process, as in the case where possession is yielded without a suit.

The statute gives the tenant two months after judgment to pay the debt before he can be turned, out of possession. In order to give him the benefit of this indulgence, it is necessary that the amount to be paid should bo settled when the judgment is rendered. The statute, therefore, provides for this liquidation. The tenant in possession is, of course, party to the suit; he is instructed to see that the judgment is rendered for the just amount due; and he is bound by it, at least so far as this, that the amount of the conditional -judgment must be paid,' otherwise execution will issue at the expiration of the two months. The liquidation of the amount due is made in reference to the execution of the judgment, by which the tenant is turned out of possession ; he is the party defendant to the suit. The court adjudge the amount'due, that is to say, they render a judgment for that sum, which is a judgment between the parties to that suit, and cannot operate as a judgment against any other party. Anybody interested may indeed pay the liquidated amount and prevent the execution of the judgment: but there is nothing in the language or in the object of the statute, from which we can infer that the intention was to violate the rule, founded on obvious reasons of natural'justice, that none but the parties to a judgment can be bound or affected by it.

There are other ample remedies for all the plaintiff’s rights without the interference of equity to intercept the legal process for obtaining ¡possession of the mortgaged premises; and the consequences would be mischievous, if a third person out of possession, having - or claiming to have an interest in the equity of redemption, without proceeding under the statfite, could, by bringing a bill in equity, and alleging the need of a discovery, embarrass and obstruct the remedy given by the statute to a mortgagee who is held out of possession; a remedy, which has been hitherto found cheap and convenient, and, so far as we have any information, safe for all parties.

Demurrer overruled; injunction refused.