Ashuelot Railroad v. Elliot , 52 N.H. 387 ( 1873 )

Doe, J.

I. The mortgagee in trust claims that the mortgage was foreclosed in the second mode provided by Gen. Stats., chap. 122, sec. 14, which is peaceable entry, one year’s possession, and publication of notice ; that, the possession having been yielded to the trustee in pursuance of a vote of the corporation, publication of notice would have been nugatory, so far as the corporation was concerned, the corporation well knowing all the facts which would have been published; that actual notice is sufficient as against the party having actual notice; that the statute of 1834 provided that the mortgage should not be foreclosed, against any person but the mortgagor and his heirs, unless notice was published; that the provision for publication was for the protection of purchasers, creditors, and others having no actual notice ; that the evil to be remedied was the injury to persons who might be defrauded without notice ; that the subsequent and present statutes are mere revisions of the act of 1834, without an intent to change it in this particular; and that the doctrine of actual notice, being equivalent to registry, publication, or other formal or constructive notice, is applicable to this case.

We think that the requirement of notice, in the present statute, is not a mere revision of the notice clause of the act of 1834; that the change of phraseology is so material, and on so material a subject, that the legislature must have intended to change the former law, and require publication even as against the mortgagor ; that such has been the understanding of the profession ; that it has been understood that the doctrine of actual notice being a substitute for formal notice does not apply to such a case as this; and that tire notice required by the statute is necessary to a foreclosure, even between mortgagee and mortgagor, at least upon such facts as those stated in this case, and such grounds as those relied upon by the mortgagee. . YvTe are therefore of opinion that the mortgage has not been foreclosed, under the general law of the State.

II. As to a foreclosure, aided or effected by the acts of July 4,1861, and July 6, 1866, we are not aware that, since the decision of Merrill v. Sherburne, 1 N. H. 199, there has been any reason to regard such a point as doubtful in this State. It would be a matter of regret if there could be any uncertainty as to the constitutional law on such a subject. For reasons so clearly and forcibly stated in the plaintiffs’ briefs that there is no occasion to enlarge upon them, this bill may be maintained, notwithstanding the acts referred to.

III. The mortgagee contends that the plaintiffs’ claim to redeem is stale, and so long delayed as to show, at least, gross laches, and that there is such an unexplained acquiescence in the assertion of an adverse right that equity will not interfere, although twenty years have not elapsed. If any ground of that kind is tenable, it can be mor© satisfactorily examined at the trial term when the facts are fully developed : and the consideration of this question, which must be largely a question of fact, is remitted to the trial term.

Ga&e discharged.