Marsh v. Smith
Superior Court of New Hampshire
Writ ok Entry, dated January 28, 1846, in which the plaintiff demanded the possession, of a tract of land in Portsmouth, and alleged that James Smith, one of the defendants, on the 5th of September, 1837, being seized of the demanded premises in fee, by his deed of mortgage of that date conveyed the same to one Charles Hardy, to hold to him and his heirs and assigns in fee and in mortgage, and then alleged an assignment of the mortgage to the plaintiff, and a disseizin by…
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Writ ok Entry, dated January 28, 1846, in which the plaintiff demanded the possession, of a tract of land in Portsmouth, and alleged that James Smith, one of the defendants, on the 5th of September, 1837, being seized of the demanded premises in fee, by his deed of mortgage of that date conveyed the same to one Charles Hardy, to hold to him and his heirs and assigns in fee and in mortgage, and then alleged an assignment of the mortgage to the plaintiff, and a disseizin by the defendants. The defendants pleaded in abatement “ that, long before the purchase of the original writ in this action,…
1Opinion of the CourtParker, C. J.
The first question raised by this case is whether a mortgagor, in a suit against him by his morí*368gagee to recover the possession of the mortgaged premises, may defeat the suit -by a plea of special non-tenure. In real actions, not founded upon a title in mortgage, this is a good plea in abatement in certain 'eases. Whidden v. Proctor, 17 N. H. Rep. 90, and eases cited. But a mortgage being a security charged upon the land, and a suit claiming under it being instituted for the purpose of obtaining the possession in order to secure the rents and profits, or to effect a foreclosure, it has been…
2Cases cited5 opinions
- Moors v. ParkerMassachusetts Supreme Judicial Court · 1807
- Reed v. ShepleySupreme Court of Vermont · 1834
- Keith v. SwanMassachusetts Supreme Judicial Court · 1814
- Schermerhorn v. TrippNew York Supreme Court · 1804
- Whidden v. ProctorSuperior Court of New Hampshire · 1845