Holt v. Baker
Supreme Court of New Hampshire
Writ ok Entry, on a mortgage. Facts found by a referee. The demanded premises were mortgaged to Edward P. Kimball, June 17, 1871, and by the defendant, Baker, subject to the Kimball mortgage, to Wm. P. Chamberlain, January 11, 1872. These mortgages were recorded at their dates. July 2, 1872, Baker borrowed $800 of the plaintiff upon his note, under a promise that he should have a first mortgage of the premises as security.
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Writ ok Entry, on a mortgage. Facts found by a referee. The demanded premises were mortgaged to Edward P. Kimball, June 17, 1871, and by the defendant, Baker, subject to the Kimball mortgage, to Wm. P. Chamberlain, January 11, 1872. These mortgages were recorded at their dates. July 2, 1872, Baker borrowed $800 of the plaintiff upon his note, under a promise that he should have a first mortgage of the premises as security. The plaintiff had no knowledge or notice of the existence of the Chamberlain mortgage until this suit was brought. With the money borrowed of the plaintiff Baker paid the…
1Opinion of the CourtAllen, J.
The plaintiff’s mortgage is subsequent to that of the defendants’, Burnap and Taft, and he cannot prevail in this suit unless the transaction between him and Baker may be treated as an equitable assignment to him of the Kimball mortgage, and uphold it as prior to the defendants’ mortgage. The payment of the amount due upon a mortgage, by the owner of the equity of redemption or by one having an interest to protect, will extinguish the mortgage, or operate as an assignment, according to the justice of the case and the interest of the parties ; and the intention will be presumed to correspond…
2Cited by3 opinions
- Fletcher v. ChamberlinSupreme Court of New Hampshire · 1881
- Griffin v. International Trust Co.Court of Appeals for the Ninth Circuit · 1908
- Rossiter v. SanaghiaroSupreme Court of New Hampshire · 1917