Melven v. Darling
Superior Court of New Hampshire
EJECTMENT1 for a parcel of land in Plymouth, eighteen acres. The plaintiff declared that James Gorman was seised April 15, 1795, and conveyed to plaintiff to bold in mortgage. Plea: not guilty. The condition of the mortgage was to pay $110 in thirty months, with interest. The defence was payment. Melven’s creditors attached this debt due from Gorman ; and he has paid, or will be compelled to pay, the whole debt, principal and interest. There were several attaching creditors.
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EJECTMENT1 for a parcel of land in Plymouth, eighteen acres. The plaintiff declared that James Gorman was seised April 15, 1795, and conveyed to plaintiff to bold in mortgage. Plea: not guilty. The condition of the mortgage was to pay $110 in thirty months, with interest. The defence was payment. Melven’s creditors attached this debt due from Gorman ; and he has paid, or will be compelled to pay, the whole debt, principal and interest. There were several attaching creditors. Actual payment was made before this suit commenced, except in one instance. In that, judgment was rendered against…
1Opinion of the Court
By this Court.
I. Payment by the mortgagor, under our statute, before the commencement of the suit on the mortgage, though after the time limited for payment, is a good defence. It was so determined in the Circuit Court of the United States, New Hampshire District, Nov. 1801, Inches v. Warner, Manuscript Report.
And there can be no question but that a debt secured by mortgage, and the evidence of the debt not a negotiable note, and not assigned so as to pass the property in equity, is attachable.
II. But can the debtor avail himself, in an action brought by his creditor, of a judgment against…
2Cases cited22 opinions
- Embree & Collins v. HannaNew York Supreme Court · 1809
- Hull v. BlakeMassachusetts Supreme Judicial Court · 1816
- Irvine v. Lumbermen's BankSupreme Court of Pennsylvania · 1841
- Crawford v. SladeSupreme Court of Alabama · 1846
- Prescott v. HullNew York Supreme Court · 1820
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