Opinion
Decided December, 1885.
The right of recovery of real estate contemplated in the statute of limitations (G. L., c. 22, s. 1) is a right of recovery as owner, and not the mere right of possession which a mortgagee has for the protection of his security.
WRIT OF ENTRY, on a mortgage to the plaintiffs' testate, executed October 19, 1863, to secure, besides certain notes that have been paid, one note for $447, dated April 1, 1862, made payable in five years from its date with interest annually, which has not been paid. The defendant pleaded the statute of limitations. The court ruled that the plea was not sustained by the foregoing facts, and the defendant excepted.
Sulloway, Topliff O'Connor, for the defendant.
Clough Clark, for the plaintiffs.
"No action for the recovery of real estate shall be brought after twenty years from the time the right to recover first accrued." G. L., c. 221, s. 1. A mortgagee's recovery of possession by a real action before breach of condition (when possession is not reserved by the mortgagor) is a mere provisional protection of the creditor's security. Furbush v. Goodwin, 29 N.H. 321, 332; Tripe v. Marcy, 39 N.H. 439, 444; Gray v. Gillespie, 59 N.H. 469. Foreclosure being an application of the land to the payment of the debt, an action for the foreclosing recovery of the estate cannot be maintained until the debt is due; and under the statute, limiting the time within which the foreclosing right of action can be exercised, the limited time does not begin before the right exists. Howard v. Hildreth, 18 N.H. 105; Tripe v. Marcy, supra 445. If the unpaid note were payable twenty-one years after the date of the mortgage, the right of enforcing its payment by foreclosure would not be barred a year before foreclosure could be begun.
Exceptions overruled;
SMITH, J., did not sit: the others concurred.