French v. Prescott , 61 N.H. 27 ( 1881 )

The building erected by Sweeney became a part of the realty. Bean v. Brackett, 34 N.H. 102, 118, and cases cited. His interest in it was that of a lessee for years, and was the same in the land on which it stood. This interest was mortgagable. 1 Hill. Mort. 4; Coote Mort. *101; Jones Mort., ss. 136, 140. The fact that Sweeney, in form, mortgaged to the bank a larger interest is immaterial. The effect was not, as claimed by the plaintiff, to render the mortgage void, but to convey the interest he had, not only in the building, but also in the land on which it stood. Bank v. Brooks, 2 N.H. 149, and cases cited; Marston v. Stickney, 58 N.H. 609, 610; Rogers v. Snow, 118 Mass. 124; Law v. Hempstead, 10 Conn. 23; 4 Kent 467.

The mortgage being valid, it follows that the levy was subordinate to it; and as the mortgagee was in possession of the premises when the levy thereon was made, and had been long prior thereto, it is obvious that the levy gave the plaintiffs no right to the rents thereof as against the mortgagee.

If this be so, it is of course unnecessary to consider the validity of the assignment of the lease, or its competency as evidence.

Judgment for the defendant.

STANLEY, J., did not sit; the others concurred.