Bank v. Raymond

FROM ROCKINGHAM CIRCUIT COURT. The sale having been made with the verbal assent of the mortgagees, passed the title to the defendants — Gage v. Whittier, 17 N.H. 312 — so that no action of trover or replevin could be maintained against them for the hay. They are not concerned with the adjustment of any legal or equitable rights between the mortgagors and mortgagees. They bought the hay under such circumstances as to acquire a good title, and the only question for them now is, who is entitled to be paid for it. It seems to me that is a very plain question, and one upon which there was little need of their going astray. It seems that the mortgagors could not maintain an action for the price, because of their violation of the statute. Gage v. Whittier, supra, p. 318. The defendants' title, conferred by the sale, rests upon *Page 145 and grows out of the assent of the mortgagees, given not to them, but to the mortgagor, Towle. The amount of it is, that Towle was acting as agent of the mortgagees in making the sale. This being so, the positions of the plaintiffs' counsel seem to be incontrovertible, and show that the judgment should be in their favor upon two grounds: (1) That before the delivery of the hay, or payment of the price, the defendants were notified of the mortgage, and that the plaintiffs required payment to be made to them. "It is now well settled by authorities," says SHAW, C. J., in Huntington v. Knox, 7 Cush. 373, "that where the property of one is sold by another as agent, if the principal give notice to the purchaser, before payment, to pay to himself and not to the agent, the purchaser is bound to pay the principal, subject to any equities of the purchaser against the agent;" (2) that an undisclosed principal may recover against the purchaser the price of goods sold by his agent; and this is so, irrespective of previous notice. I do not think the case is presented to us in such aspect that the rights of Parna Towle need be considered or adjusted. The question does not appear to have been raised at the trial whether the defendants obtained a good title as against her, and if it had been, it is quite likely that her acquiescence in some way would have been shown. But at all events her title and rights in the property are subject to the rights of the plaintiffs as mortgagees, and this suit settles nothing between the parties to the mortgage. I think the exceptions should be overruled.