Weld v. Sabin

Gilchrist, J. It appears that proceedings were commenced by Sabin against the petitioner and another, under [536] the Revised Statutes, chapter 209, providing an “ action against tenants.” It also appears that the defendants in the process suffered default through the omission of one of them, Daniel "Weld, Jr., to give the attention to the matter which he had promised the petitioner to give. The consequence has been that Sabin has taken out his writ of possession, and taken possession of the land by means of it. The petitioner having thus, through misfortune, failed to have a hearing of his cause, brings his petition to this court for a review, according to the provisions of the Revised Statutes, chapter 192. Without pausing to inquire whether this is such a case as would admit of relief in the form of a review, to which form of remedy the court seem to be limited in the statute referred to, (Dickinson v. Davis, 4 Mass. 520; Borden v. Borden, 7 Mass. 93 ; Stone v. Davis, 14 Mass. 360; Pope v. Pope, 4 Pick. 129; Smith v. M’Daniel, 15 N. H. 474) we shall consider the petitioner’s case as if no such technical difficulty intervened. The estate in regard to which the controversy has arisen was at one time the property of Moses Weld and Daniel Weld, Jr., subject to a mortgage which had been made to the petitioner and his wife, to secure'their support for life. Daniel Weld, Jr., and Moses Weld having that interest in the farm on the 10th day of January, 1835, mortgaged it to Chase to secure a sum of money which he advanced to them, and the petitioner joined in that mortgage. Moses Weld soon after released his interest to Daniel Weld, Jr., who, on the 6th day of April, 1836, mortgaged the same to Sabin. On the 8th of March, 1845, Sabin paid the mortgage which Chase held, at the same time requesting Chase to assign it to him, which Chase declined to do, and executed a release of the premises, as advised by counsel. A question is made as to what right Sabin acquired by the act of paying the mortgage. [537] It is perfectly well settled that when a mortgagee, for his own protection, discharges an elder mortgage, or other incumbrance, he becomes entitled to treat such mortgage as if it were assigned to him, and that he becomes substituted in the place of such incumbrancer, and may enforce the lien accordingly. Robinson v. Leavitt, 7 N. H. 100; Page v. Foster, 7 N. H. 392. An attempt is made in the argument to distinguish this from ordinary cases in which the rule is applicable, by the fact that although the petitioner joined in the mortgage, he owed no part of the debt. But we think this not to be a material feature. The mortgage made to secure the debt attends it, into whose hands soever the debt passes, whether by assignment in fact, by intestacy, or by force of the equitable principle of substitution which has been referred to; and by this is meant the mortgage that was made, and not a mortgage of a less estate. The rule extends as well to mortgages made to secure debts other than those of the mortg'agor, as to those which individuals make to secure debts contracted by themselves; and there is no difference between the two kinds, nor is the distinction which has been taken by counsel sustained by any authority to which we have been referred. Sabin, therefore, having by paying the debt due to Chase acquired his rights under the mortgage, had the right of a mortgagee to immediate possession of the premises mortgaged; and this seems to be all that he has acquired by the default of the petitioner, or of the party to whom he entrusted the conduct of his defence. The petition does not suggest that he had a defence to the process; much less does it point out what that defence is. It states, indeed, that the mortgage to Chase had been paid, and that the petitioner’s title was better than that which Sabin acquired under the mortgage of Daniel "Weld, Jr., to him; but the payment of Chase’s mortgage [538] has been seen to be merely equivalent to an assignment of it to Sabin. Nothing could possibly be gained, in the promotion of justice, by granting to the petitioner a review upon the case made. It would perhaps afford him the means of retaining possession of the land for a little longer time; but the possession clearly belongs to Sabin, who, without violence, fraud, or other misconduct that has been made to appear, has gained the possession. Petition dismissed.