Opinion
Decided June, 1888.
ASSUMPSIT, on a promissory note made in 1873, and secured by a mortgage of real estate, upon which there were prior mortgages. Plea, the statute of limitations. It was agreed that in 1877 the mortgaged premises were sold, and the proceeds applied on the prior mortgages in the course of insolvency proceedings against the defendant's estate.
S.C. Eastman, for the plaintiff.
Bingham, Mitchell Fletcher, for the defendant.
If this suit were on the mortgage, on a plea of the statute of limitations, the plaintiff would be entitled to judgment, and the statute makes no other test. Hall v. Hall, 64 N.H. 295; Alexander v. Whipple, 45 N.H. 502.
If the defendant had never had a title to the mortgaged premises, the plaintiff could obtain judgment of foreclosure, and "actions upon notes secured by mortgage of real estate may be brought so long as the plaintiff is entitled to bring an action on the mortgage." G.L., c. 221, s. 5.
Judgment for the plaintiff.
BLODGETT, J., did not sit: the others concurred.