Parsons v. Little , 66 N.H. 339 ( 1890 )

Allen, J.

The foreclosure of the three prior mortgages by Corey put the plaintiff’s mortgage in abeyance, but did not discharge or annul it. The plaintiff was not made a party to the foreclosure proceedings, and never relinquished her mortgage nor the debt secured by it; and when Corey, after his foreclosure proceedings had given him a title to the premises, bargained and sold the premises to Little for a stipulated price, which was paid him by Little, the plaintiff was let in with her mortgage, which operated as fully as if there had been no prior mortgages. Having purchased the property of Corey after the foreclosure of his mortgages, and paid for it in full, and being in possession, the title, without a formal conveyance, was equitably in Little, and enured to the benefit of the plaintiff as subsequent mortgagee. Whether the transaction be regarded as one in which Little paid off the prior incumbrances thereby letting in the plaintiff, or as a purchase outright by Little of Corey after his foreclosure became complete, the effect is the same. In the one case, the plaintiff’s mortgage is let in by a removal of the bar made by the foreclosure of the prior mortgages, or, in the other case, by the title acquired by Little after foreclosure enuring by estoppel to the benefit of the plaintiff.

The conveyance by Corey to Mrs. Little was at her husband’s request after he had purchased and paid for the land, and was for the purpose of paying a debt to his wife. If by Little’s payment to Corey and his purchase of the land he became the equitable owner, and thereby his title enured beneficially to the plaintiff, the subsequent conveyance of the legal title to Mrs. Little by Corey, at Little’s request, did not change or destroy the plaintiff’s rights. The conveyance was, in legal effect, the same as if, on receiving payment for the land, Corey had conveyed it to Little, and he, in consideration of his indebtedness to his wife, had conveyed it to her. And in such a case, the mortgage having revived by Little’s purchase and continued possession, the conveyance to his wife must be subject to the plaintiff’s mortgage.

Whether, if the title to the land, equitable and legal, had come directly from Corey to Mrs. Little, she would have been estopped, being a married woman, by her deed with her husband to the plaintiff, it is not necessary to consider. Taking the equitable title through her husband, who had paid the prior incumbrances, she takes it subject to the plaintiff’s mortgage.

Judgment for the plaintiff.

Bingham, J., did not sit: the others concurred.