Dunbar v. Starkey
Superior Court of New Hampshire
Writ op entry upon a mortgage made by the defendant to one Horace Starkey, and by him assigned to the plaintiff. Ezekiel B. Pierce moved in the common pleas for leave to defend the action, upon the ground that since the date of the mortgage, he had acquired a title to the land as against the defendant, by the extent of an execution upon a judgment against him, the premises having been set off in part satisfaction of the judgment, and that there was evidence that the amount…
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Writ op entry upon a mortgage made by the defendant to one Horace Starkey, and by him assigned to the plaintiff. Ezekiel B. Pierce moved in the common pleas for leave to defend the action, upon the ground that since the date of the mortgage, he had acquired a title to the land as against the defendant, by the extent of an execution upon a judgment against him, the premises having been set off in part satisfaction of the judgment, and that there was evidence that the amount due on the mortgage (if any thing, in fact, was due,) was much less than the sum appearing upon the face of the note…
1Opinion of the CourtWoods, J.
The land is the property of the mortgager as to every person’s claim but that of the mortgagee. And if the creditor chooses to take it subject to such mortgage, without deducting from its value any thing on account of the debt, he may do so by an extent of his execution upon it, as upon unincumbered property. He then stands in the place of the mortgager, and is entitled generally to all his remedies and rights in regard to it. White v. Bond, 16 Mass. 400; Kelly v. Burnham, 9 N. H. Rep. 20.
The petitioner, Pierce, appears thus to have acquired all the interest of Abel Starkey in the land, and…
2Cases cited3 opinions
- White v. BondMassachusetts Supreme Judicial Court · 1820
- Buckman v. BuckmanSuperior Court of New Hampshire · 1828
- Kelly v. BurnhamSuperior Court of New Hampshire · 1837