Batchelder v. Robinson
Superior Court of New Hampshire
This was an action of trespass, quart clausum fregit, in which, on the trial, at September term, 1831, upon the general issue, a nonsuit was entered, subject to the opinion of the court, upon the following case. William Robinson, being lawfully seized of the locus in quo, on the 11th December, 1826, by deed, conveyed the same to D. C. Atkinson, in fee and in mortgage,* to secure the payment of two promissory notes.
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This was an action of trespass, quart clausum fregit, in which, on the trial, at September term, 1831, upon the general issue, a nonsuit was entered, subject to the opinion of the court, upon the following case. William Robinson, being lawfully seized of the locus in quo, on the 11th December, 1826, by deed, conveyed the same to D. C. Atkinson, in fee and in mortgage,* to secure the payment of two promissory notes. In the spring of the year 1828, Atkinson entered upon the locus in quo, for breach of the condition of his mortgage, and agreed with W. Robinson, that the said Robinson might…
1Opinion of the Court
By the court.
This plaintiff has now a good title to the locus in quo. For, although the entry and possession of the mortgagee might have been sufficient to foreclose the right in equity to redeem, yet, as the mortgagee has accepted all the money secured by the mortgage, this must be considered as a waiver of the entry for that purpose. 5 Pick. 418, Fay v. Vallentine; 4 Greenleaf, 495, Quint v. Little.
It is equally clear, that when this plaintiff brought: his writ of entry against W. Robinson, he had no seizin, which entitled him to maintain such an action. For the mortgagee had the right of…
2Cited by4 opinions
- Deming v. ComingsSuperior Court of New Hampshire · 1841
- Gould v. WhiteSuperior Court of New Hampshire · 1852
- Leighton v. ShapleySuperior Court of New Hampshire · 1836
- McNeil v. CallSuperior Court of New Hampshire · 1849