Ray v. Scripture

Chase, J. The plaintiffs claim title to the demanded premises under a foreclosure of the Godfrey mortgage, attempted to be made according to the first mode prescribed by Gen. Laws, c. 136, 8. 14. To maintain their title they must show an entry into the mortgaged premises under process, and continued actual possession thereof for one year. When the entry has been made the office of the process is completed. If the possession thus acquired is continued, it is held under the mortgage and not under the process. Couch v. Stevens, 37 N. H. 169; Hall v. Hall, 46 N. H. 240, 243. Assuming that the officer’s return upon the writ of possession is sufficient evidence of an entry by the mortgagee upon the demanded premises (a point that would not be conceded if the officer’s return were amended to conform to the *262 facts), the requisite possession remains to be shown. Hall v. Hall, supra. This must be “ something more than a continuance of the legal seizin that had been in the mortgagee ” previously, and “something more than such continued seizin reinforced by a momentary entry.” When practicable, it must be actual as distinguished from constructive possession. Bartlett v. Sanborn, 64 N. H. 70, 71. Being a continuous course of action for a year, it is not a matter of record like the entry (G. L., a. 235, s. 18), but must be proved by other evidence. The mortgagor’s tenants of the two stores situated westerly of the demanded premises became tenants of the mortgagee upon the entry. This was the only actual possession of the mortgaged premises held by the mortgagee during the year. The mortgagor’s tenant of the livery-stable office, which included the .demanded premises, did not attorn to the mortgagee at the time of his entry, but occupied the office and paid rent to the mortgagor after the entry the same as before. There was no contract between the mortgagor and mortgagee by which the former’s occupancy was to be treated as the latter’s possession. While the actual possession of the stores passed to the mortgagee, that of the demanded premises remained in the mortgagor. The mortgagee’s possession of the latter, at the most, was nothing more than his legal seizin reinforced by a momentary entry. See Hobson v. Roles, 20 N. H. 41; Worster v. Great Falls Mfg. Company, 41 N. H. 16. There was no practical difficulty in taking and continuing actual possession. The plaintiffs have failed to show a foreclosure of the Godfrey mortgage on the demanded premises. As the remainder of the Godfrey lot was of greater value than the amount due on the mortgage debt, the foreclosure of the mortgage upon it paid the debt and freed' the demanded premises from the mortgage. Green v. Cross, 45 N. H. 574, 576; Fletcher v. Chamberlin, 61 N. H. 438, 493. Judgment for the defendants. Clark, J., did not sit: the others concurred.