Heath v. West & a., 28 N.H. 101

Eastman, J. When this case was before this court at a previous term, it was held that the assignment of the mortgage, by Dennison to West, was good, and that West succeeded to the rights of Dennison. If, therefore, Dennison could successfully defend against the action, West can. Where property is sold and a mortgage given back to secure the purchase money, it is in law one transaction. This is well settled in regard to real estate, and we see no reason why the doctrine should not be applied to personal property. Roberts v. Wiggin, 1 N. H. Rep. 73 ; Robbins v. Eaton, 10 N. H. Rep. 563 ; Bigelow v. Kinney, 3 Vt.

Rep. 353; Richardson v. Boright, 9 Vt. Rep. 368; Weed v. Beede & a., 21 Vt. Rep. 495. Being one transaction, one

part cannot be disaffirmed or rescinded, without the other being consequently disaffirmed or rescinded also. A party cannot apply to his own use that part of the transaction which may bring to him a benefit, and repudiate the other, which may not be for his interest to fulfil. Thus it has been held that an infant cannot avoid amortgage and affirm a deed, when both are made at one and the same time, relate to the same property, and go to make up one transaction. If the mortgage be avoided under the plea of infancy, the deed becomes of no effect. Roberts v. Wiggin, 1 N. H. Rep. 73; Richardson v. Boright, 9 Vt.

Rep. 368. Upon these principles, the ruling of the court upon the first question presented was correct. The sale of the horse to Heath, and the mortgage back, were one and the same transaction, and Heath could not avoid the mortgage without avoiding the sale. West had the right to the property under the mortgage, so far as could be ascertained from the instrument itself, and the right to the possession of the property, and the same act on the part of Heath which would annul the mortgage, would also annul the sale.

By rescinding the mortgage, he thereby annulled the sale, and hence had no right to the horse by virtue of the sale. The act of Heath in taking possession of the horse was contrary to the terms of the mortgage, and contrary to his rights, and the act of West in reclaiming it was in accordance with the mortgage. And upon the facts presented in the case, the only way in which Heath could pretend to maintain trespass against West must be by repudiating the mortgage and treating it as

an act of minority and void, and at the same time hold the horse by virtue of the sale. But the repudiation of the mortgage, necessarily, upon the principles laid down, wrought out the invalidity of the sale» and the sale being made invalid, Heath could have no property in the horse, and therefore no right of action for its being taken by West.

If, as is contended by the plaintiff’s counsel, this doctrine is a hardship upon the minor, inasmuch as he has paid the $75, which are not required to be re-paid as a pre-requisite to the validity of the defence, it should be borne in mind that it is not West or Dennison who is seeking to repudiate the contract, but Heath. If it were Dennison or West who was endeavoring to rescind the contract, the argument of the counsel would hold good, and the $75 would have to be re-paid.

If Heath had wished to avoid the contract and recover the $75, he should have repudiated the whole transaction, both sale and mortgage, and demanded his money; or paid up the mortgage and then made a tender of the horse, and having done that he would be in a situation to recover all that he had paid for him. His contract was to pay $75 cash, and give his notes, secured by a mortgage on the horse, for the balance of the purchase money; but instead of fulfilling his contract and paying the notes, he seeks by this action to hold the horse for $75, and to repudiate the notes and mortgage.

This is the effect of the whole matter, and this, neither law nor equity will permit him to do. In Carr v. Clough, 6 Foster’s Rep. 280, the rights of an infant were somewhat examined, and we then, held, among other things, that if an infant rescinds a contract made by him for the sale of personal property, and seeks to reclaim the property or its value, he must restore, or offer to restore the consideration received, before he can sustain an action for the property sold.

By a parity of reasoning, which is fully borne out by that case, if an infant rescinds a contract for the purchase of property, and seeks to reclaim the consideration paid, he must restore the property, or offer to restore it, before he can recover the consideration. There is, perhaps, another view which might be taken of the transaction between these parties.

The case finds that West advanced the money to Dennison on the mortgage, at Heath’s request, and hence the mortgage and the possession of the property under it by West, might be treated as security given for money lent to Heath; and consequently Heath could not reclaim the property until he had made a tender of the consideration. In the second objection to the ruling of the court, no question of minority is involved; but the plaintiff claims that he has a right to maintain the action by reason of the defendant’s acts in the improper use of the horse, and the injury done to him.

But this position cannot be sustained. The plaintiff had no right to the horse after condition broken and possession taken, until the condition of the mortgage should be fulfilled ; and when the injury complained of was committed, the animal was lawfully in the possession of the defendant, and for ought that appears, has been ever sin ce.

The plaintiff had neither the possession nor right of posses» sion, neither actual nor constructive, at the time the alleged injury to the horse was committed, nor has he had any rightful possession up to the time of the commencement of the suit; and consequently he cannot maintain trespass therefor. The doctrine of trespass ab initio does not apply. Clark v. Carlton, 1 N. H. Rep. 110 ; Hanmer v. Wilsey, 17 Wend. 91; Brainard v. Barton, 5 Vt. Rep. 97; Putnam v. Wyley, 8 Johns. 432 ; Daniels v. Pond, 21 Pick. 367; Dallam v. Fitler, 6 Watts & Serg. 323; Freeman v. Rankins, 8 Shepl. 446.

In the matter of real estate, this question was settled by this court in Chellis v. Stearns, 2 Foster’s Rep. 312; and the reasons given for that decision would seem to apply with much force to the point here. We entertain no doubt that the rulings of the court below were correct, and there must consequently be, Judgment on the verdict.