Shaw v. Abbott
Supreme Court of New Hampshire
Petition, to redeem land from a mortgage. Reported 60 N. H. 564. Facts found by the court. The defendant holds a third mortgage, given in 1871, and a fifth mortgage, given January 25, 1878, and the plaintiff holds a fourth mortgage, given in 1872, of the same land. The plaintiff, as holder of the fourth, seeks to redeem the land from the third.
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Petition, to redeem land from a mortgage. Reported 60 N. H. 564. Facts found by the court. The defendant holds a third mortgage, given in 1871, and a fifth mortgage, given January 25, 1878, and the plaintiff holds a fourth mortgage, given in 1872, of the same land. The plaintiff, as holder of the fourth, seeks to redeem the land from the third. Three days before the fifth mortgage was made, the plaintiff signed the following writing: “Whereas, I now hold a mortgage on the homestead premises of my father, David Shaw, situated on South street, in Concord, N. H., which mortgage is the fourth on…
1Opinion of the CourtDob, C. J.
The statutory petition to redeem is an action of a nature sufficiently equitable to bring the plaintiff within the rule that he who seeks equity must do equity ( Proctor v. Green, 59 N. H. 350, 352); and this rule does not allow him to avoid the agreed priority of the last mortgage. Story Eq., s. 64 e. His agreement can be enforced in an action brought by the defendant for specific performance; and there is no occasion to put the parties to the expense of another suit. Gillig v. Maass, 28 N. Y. 191, 213, 214. The plaintiff’s judgment for redemption will contain a condition that the plaintiff…
2Cases cited1 opinion
- Gillig v. . MaassNew York Court of Appeals · 1863
3Cited by1 opinion
- Mead v. WelchSupreme Court of New Hampshire · 1892