Boutelle v. Melendy
Superior Court of New Hampshire
Assumpsit. The suit was for the price of a horse and harness, sold by the plaintiff to the defendant, in November, 1845. At the time of the sale, the property was subject to a mortgage, and was sold without the consent of the mortgagee. Such a sale was made illegal by ch. 132, § 8 of the H. S., and by §10 a penalty was imposed for it.
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Assumpsit. The suit was for the price of a horse and harness, sold by the plaintiff to the defendant, in November, 1845. At the time of the sale, the property was subject to a mortgage, and was sold without the consent of the mortgagee. Such a sale was made illegal by ch. 132, § 8 of the H. S., and by §10 a penalty was imposed for it. The defendant was notified by the mortgagee of his claim, but retained the property, and the mortgage debt was subsequently paid by the plaintiff. The defendant filed in set-off his account of various payments made on account of the horse and harness, some…
1Opinion of the CourtWilcox, J.
A sale of mortgaged personal property, without the consent of the mortgagee, being expressly prohibited, and in addition to the prohibition, a penalty being imposed for it upon the vendor, upon such a contract, it is very well established, both in this court and elsewhere, no action can be founded. Upon this point there can be no dispute ; but the question is made, whether the subsequent acts of the defendant do not amount to a ratification and implied *197promise which will support the action. As against the plaintiff, he had a good title to the property. The mortgagee only could take it from…
2Cases cited2 opinions
- Caldwell v. WentworthSuperior Court of New Hampshire · 1843
- Allen v. DemingSuperior Court of New Hampshire · 1843
3Cited by2 opinions
- Doherty v. BartlettCourt of Appeals for the First Circuit · 1936
- Arsenault v. Realty Funding Corp. (In re Arsenault)United States Bankruptcy Court, D. New Hampshire · 1995