Kelly vs. Burnham, 9 N.H. 20

Upham, J. The tenant in this case claims to recover the demanded premises by virtue of conveyances executed to him by the mortgagor and mortgagee of the property. These conveyances are ineffectual to pass the land, provided the previous levy made on the same, on execution recovered against the mortgagor and mortgagee, is valid. Ordinarily the interest of a mortgagee cannot be taken by levy upon execution.

There may, perhaps, be an exception to this rule, where the execution is for the joint debt of the mortgagor and the mortgagee ; and, on due notice being given, they concur in choosing an appraiser ; but the facts are different in this case. It appears, by the officer’s return, that the land was shown him as the estate of “the judgment debtors,” and that it was “ set off as the estate,” but no notice was given them ; and the only excuse assigned for such neglect is, that Thomas Coffin, the mortgagor, was without the state, and the officer chose for him an appraiser.

This excuse does not apply to the mortgagee, and the levy is clearly void against him, as he was never in any manner a party to it, and was within the state at the time—so that notice might have been given to him. The only question remaining in the case is, whether the levy can be sustained against the mortgagor. Since the statute of July 3, 1822, the proper, if not the only mode, of securing for a creditor the interest of a mortgagor in land, is by attachment, and a sale at public auction of the equity of redemption.

But in this case, the levy was not made on a mere equity of redemption ; but the whole estate was set off as the property of the debtor, and was allowed in discharge of the execution. The levy, therefore, is well enough upon its face, and can prejudice no one except the creditor. If he is willing to lose the value of the incumbrance, and to take the estate as absolute in his debtor, there seems to be no reason against it.

It is holden in Massachusetts, where they have a similar statute, that lands may be taken in this manner, on execution against the mortgagor, provided no deduction is made in the levy on account of the mortgage, and the creditor is willing to receive the land as unincumbered. 11 Mass. 222, Warren vs. Childs ; 16 Mass. 400, While vs. Bond.

On these principles the tenant, then, in this case, can bold by means of his title under the levy the mere right of a mortgagor of the premises, and the plaintiff, who is as-signee of the mortgagee, is entitled to judgment for the land, subject to the tenant’s right inequity of redemption. The amount of the conditional judgment will be the sum due on the note assigned to the plaintiff by John Coffin, and the amount of the note to Moses Coffin, now in the plaintiff’s ’ hands unendorsed, provided it is shown to have been paid by him prior to, and in consideration of, the assignment of the mortgage.

On these conditions there should be Judgment for demandant.