Clough v. Rowe
Supreme Court of New Hampshire
Writ ok Entry, on a mortgage to the plaintiffs’ testate, executed October 19, 1868, to secure, besides certain notes that have been paid, one note for $447, dated April 1,1862, made payable in five years from its date with interest annually, which has not been paid. The defendant pleaded the statute of limitations. The court ruled that the plea was not sustained by the foregoing facts, and the defendant excepted.
1Opinion of the CourtClark, J.
“No action for the recovery of real estate shall be brought after twenty years from the time the right to recover first accrued.” G. L., c. 221, s. 1. A mortgagee’s recovery of possession by a real action before breach of condition (when possession is not reserved by the mortgagor) is a mere provisional protection of the creditor’s security. Furbush v. Goodwin, 29 N. H. 321, 332: Tripe v. Marcy, 39 N. H. 439, 444; Gray v. Gillespie, 59 N. H. 469. Foreclosure being an application of the land to the payment of the debt, an action for the foreclosing recovery of the estate cannot be maintained…
2Cases cited1 opinion
- Gray v. GillespieSupreme Court of New Hampshire · 1879
3Cited by2 opinions
- Perkins v. EatonSupreme Court of New Hampshire · 1887
- Levensaler v. BatchelderSupreme Court of New Hampshire · 1929