Plaisted v. Holmes

Clark, J. A question of law once decided at the law term is not reconsidered in the same case except on a motion for a rehearing. Bell v. Lamprey, 58 N. H. 124. The question upon which the plaintiff desired to take the verdict of the jury was determined adversely to the plaintiff upon a former trial (ante, p. 293), and the evidence being the same as at the former trial, the request was properly denied. The plaintiff’s title being invalid as to Gray’s creditors was invalid against the defendant, who derived his title from an attachment and sale of the horse by a creditor of Gray. The legality of the sale was not affected by the assent of the mortgagee, nor by the fact that the property sold at a sum less than the amount due upon the mortgage. If the defendant derived his title under the mortgage, it was valid against the plaintiff. A mortgagee is a creditor of the mortgagor (2 Hilliard on Mort. 85), and, to the extent of his claim, a purchaser, and is entitled to the same protection from all secret equities and trusts, of which he had no notice, as any other bona fide purchaser. Jones on Mort., s. 710. Exceptions overruled. Doe, C. J., did not sit: the others concurred.