Wilson v. Kimball, 27 N.H. 300

Eastman, J. The demandant and tenant both claim title to the premises from Charles S. Perkins, who was the owner of the same December 6, 1843. The demandant’s title is that of assignee of the mortgage from' Charles S. Perkins to Jane L. Perkins, dated November 26, 1844; for which he paid a good consideration ; and there is no suggestion that the cdnsideration between the original parties to the mortgage was not also good. The mortgage was duly signed and acknowledged by Charles S. Perkins, the mortgager, and legally recorded.

This was public notice of its existence, not only to purchasers and creditors, but to all who might in any way be interested in the matter. In the hands of Jane' L. Perkins it was, until fully satisfied, effectual against any after-ac- • quired title. An assignment of the mortgage in due form was made by the mortgagee to the demandant, and the note regularly indorsed to the plaintiff, was, together with the mortgage, duly delivered to him. By this transfer and delivery the demandant succeeded to all the rights of Jane L. Perkins in the note and mortgage, and was clothed with all the powers .to inforce it.

It was not necessary that the assignment should be acknowledged and recorded to make it valid, since the execution of the assignment itself was unnecessary in order to pass the mortgagee’s interest. Until proceedings are had for the purpose of inforcing a mortgage, the interest of the mortgagee may be assigned without deed, by a parol transfer of the debt and mortgage. Rigney v. Lovejoy, 13 N. H. Rep. 247; Southerin v. Mendum, 5 N. H. Rep. 420; Runyan v. Mersereau, 11 Johns. 534; Jackson v. Blodgett, 5 Cowen 202; Green v. Hoit, 1 Johns. 580.

This title or interest of the demandant in the premises was acquired September 20,1847, and, as a mortgage, was perfect; subject to the prior mortgages to Rockwood and Leach, and to Chase. It was sufficient to maintain the action against any person in possession of the premises, unless he held by a title paramount to the mortgage. Wheeler v. Bates, 1 Foster’s Rep. 460. The conveyance of the premises by Charles S. Perkins to the tenant was in June, 1850, and of course nearly three years subsequent to the time when the demandant acquired his title.

At the time of this conveyance to the tenant, the records of the county showed the existence of the several mortgages to Rockwood and Leach, to Chase, and to Jane L. Perkins; and the title which the tenant then acquired was consequently subject to the incumbrances.

The ground taken by the counsel, that the tenant is a bona fide purchaser, without notice, and should be protected, would perhaps be sufficiently answered by the fact stated in the case, that the demandant resided in another county, and was ignorant of the conveyance ; but, as before stated, it was unnecessary to have the assignment made in writing, or re-, corded, much less would it be required of an assignee to seek out and .notify every one who might subsequently acquire an interest in the premises, that he held a mortgage upon them.

The records.are the guide by which purchasers must generally be governed, and so long as a mortgage remains uncancelled upon them, the presumption is that it is an incumbrance upon the land. Of the mortgages upon the demanded premises, it appears that one only was specified in the deed to the tenant, that of Roekwood and Leach.

It was probably arranged between the parties at the time of the sale, that the Chase one should be taken off with a part of the purchase money, as was afterwards done ; but in regard to the demandant’s mortgage, it is plain that a fraud was practised upon the tenant by Charles S. and Jane L. Perkins. The representation that this mortgage was paid and lost was false, and the attempt to cancel the same was an infamous piece of knavery. But this was no fault of' the demandant. He had left no duty, unperformed.

He had paid a full consideration for the mortgage and note, and was entitled to all the benefits that they conferred, and the fact that the tenant was deceived and defrauded, should not be visited upon the demandant, who had in no way been connected therewith. As against the demandant, then, the tenant is remediless, unless his payment of the mortgage to. Roekwood and Leach, and his furnishing funds to remove the Chase mortgage, can enure to his benefit. The Roekwood and Leach mortgage was dated December 6, 1843, about a year prior to that under which the demandant claims, and was duly recorded.

In October, 1850, the tenant paid this mortgage, and it was regularly discharged, both on the mortgage and on the record; and the mortgage, and notes secured by it, were delivered to the tenant. Did this payment and discharge operate to destroy the mortgage, and all powers under it, or can it be held to be still in force for the protection of the tenant ? In Robinson v. Leavitt, 7 N. H.

Rep. 100, it was said that payment of the debt secured in a mortgage may operate either as a discharge or an assignment, as may best serve the purposes of justice; and that he who pays the debt as assignee may consider it as a lien on the land, so far as jus* tice may require, in the same manner as if the debt had actually been assigned. The same principle is recognized in Bailey v. Willard, 8 N. H. Rep. 429, and in Rigney v. Lovejoy, 13 N. H. Rep. 252. In the latter case, Parker, C.

J., says that payment of the debt by a third person, having an interest to protect, may operate as an assignment, even if the mortgage be formally discharged. In Towle v. Hoit, 14 N. H. Rep. 61, it was decided that one who has paid money due upon a mortgage of land, to which he had a title which might have been defeated thereby, has the right to hold the land as if the mortgage subsisted, until he shall have received the money due on it, from some one who is entitled to redeem. And this, even where he holds a regularly executed discharge of the mortgage. The same doctrine is laid down in Starr v. Ellis, 6 Johns.

Ch. Rep. 395; Pratt v. Law, 9 Cranch 498; James v. Morey, 2 Cowen 246; Barker v. Parker, 4 Pick. 505; Lockwood v. Sturtevant, 6 Conn. Rep. 374; Thompson v. Chandler, 7 Greenl. 377; and in various other cases that might be cited. Upon these principles and authorities it is clear that the tenant, having paid the Rockwood and Leach mortgage, is entitled to hold the same for his protection, and that an action cannot be sustained by the demandant against the tenant until he pays the amount of this mortgage. This requirement is founded in sound equitable principles, and does injustice to no one.

The demandant’s mortgage was subject to the Rockwood and Leach mortgage, and this he knew, or might have known, at the time he purchased it of Jane L. Perkins. It therefore imposes no hardship upon him to require that he shall cancel the Roekwood and Leach mortgage before he can recover the land. Whether the principles which we have laid down as applicable to the Roekwood and Leach mortgage can be made to apply to the Chase mortgage, need not now be examined.

The latter, however, appears to stand upon somewhat different grounds from the former, but we do not propose to investigate them, since, with the views expressed, there must be . Judgment for the defendant.