Kelly v. Burnham
Superior Court of New Hampshire
This was a writ of entry, to recover seizin and possession of certain land situated in Chester. The land was originally owned by Thomas Coffin ; and on the 17th of August, 1827, he mortgaged the same to John Coffin, to indemnify him for his liability as surety to said Thomas on a note to Merrimack County Bank, and a note to Moses Coffin ; also, for the payment of a note of T. & E. Coffin to John Coffin.
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This was a writ of entry, to recover seizin and possession of certain land situated in Chester. The land was originally owned by Thomas Coffin ; and on the 17th of August, 1827, he mortgaged the same to John Coffin, to indemnify him for his liability as surety to said Thomas on a note to Merrimack County Bank, and a note to Moses Coffin ; also, for the payment of a note of T. & E. Coffin to John Coffin. In January, 1830, the defendant in this suit recovered judgment against said Thomas Coffin and John Coffin, Abraham Towle and Ephraim Kelly, and levied his execution on said mortgaged…
1Opinion of the CourtUpham, 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 no*22tice being given, they concur in choosing an appraiser ;…
2Cases cited2 opinions
- White v. BondMassachusetts Supreme Judicial Court · 1820
- Warren v. ChildsMassachusetts Supreme Judicial Court · 1814
3Cited by2 opinions
- Rigney v. LovejoySuperior Court of New Hampshire · 1842
- Dunbar v. StarkeySuperior Court of New Hampshire · 1848