Legal Opinion

Woodbury v. Swan

Supreme Court of New Hampshire

Decided June 5, 1880PublishedCited by 1 opinion

Bill in Equity (reported in 58 N. H. 880, and in 59 N.TI. 22). Swan has had possession of the mortgaged premises since June 6, 1876. At the January term, 1879, after a partial hearing, the defendants obtained a continuance, and the following order was entered upon the docket: “ If the plaintiff prevails, the defendants to be held accountable for mesne profits.”

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Bill in Equity (reported in 58 N. H. 880, and in 59 N.TI. 22). Swan has had possession of the mortgaged premises since June 6, 1876. At the January term, 1879, after a partial hearing, the defendants obtained a continuance, and the following order was entered upon the docket: “ If the plaintiff prevails, the defendants to be held accountable for mesne profits.” After the decision was rendered that Swan could not set up his tax title against the plaintiff (59 N. H. 22), the case was sent to a referee to determine the amount of the plaintiff’s claim, and to take an account of the mesne profits.…

1Opinion of the Court

Smith, J..

It does not expressly appear from the case that the docket entry in regard to mesne profits was made in consequence of Swan’s application for a continuance; but such is the inference, and any doubt that might otherwise exist is removed by the admission of his counsel, made during the argument, that the order was suggested by himself. The motion involved delay, and loss of rents to the plaintiff during the delay, if he should prevail in the end; for Swan’s mortgage being subject to the plaintiff’s, he stood no better with the plaintiff than a mortgageor stands with the moi’tgagee.…

2Cases cited1 opinion

  1. Brooks v. New DurhamSupreme Court of New Hampshire · 1875

3Cited by1 opinion

  1. Trainor v. HeathSupreme Court of New Hampshire · 1892

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