Kezer v. Clifford , 59 N.H. 208 ( 1879 )

The brief statement disclosed no defence, and was properly rejected. Pallet v. Sargent, 36 N.H. 496. Upon the facts proved, the defendant cannot set up the tax title to defeat the plaintiff's mortgage. The relation of mortgagor and mortgagee is such that a mortgagor in possession cannot acquire, as against the mortgagee, an indefeasible tax title of the mortgaged property Cooley Taxation 345; Jones on Mort., s. 680. The mortgage contained the usual covenants of warranty, and any tax title subsequently acquired by the mortgagor enured to the mortgagee. Gardiner v. Gerrish, 23 Me. 46; Fuller v. Hodgdon, 25 Me. 243. The mortgage debt was not paid, nor was the mortgage discharged by the discharge of the defendant in bankruptcy. Although he was thereby relieved from personal liability for the debt, and for damages for breach of his contracts generally, which could have been proved against his estate in bankruptcy, he was not freed from the estoppel of the mortgage covenants. Covenants are contracts, but they operate by way of estoppel as well as by way of contract; and the discharge of the bankrupt from personal liability for damages for breach of the contract does not release him from the estoppel which does not depend upon personal liability for damages. The debt is regarded as subsisting, so far as it is necessary to uphold the mortgage. The defendant cannot redeem the premises without paying the full amount of the mortgage debt, notwithstanding his discharge. Jones on Mort., s. 1073. He is liable for any breach of the covenants in the mortgage arising subsequent to his discharge. Bennett v. Bartlett, 6 Cush. 225; French v. Morse, 2 Gray 111; Reed v. Pierce, 36 Me. 455. And the tax title acquired by him passed to the plaintiff by way of estoppel, by force of the warranty, as if the discharge in bankruptcy had not been granted. Chamberlain v. Meeder, 16 N.H. 381; Bump on Bankruptcy, 8th ed., 743; Bush v. Person, 18 How. 82.

Judgment on the verdict.

SMITH, J., did not sit: the others concurred.