¶1dissenting: The funds held by the plaintiff bank and now claimed by the United States and the assignee of William H. Sleeper are proceeds of the sale of an equity of redemption in hotel property conveyed in 1945 by Sleeper to Edgar P. Lessard, and thereafter foreclosed by the bank under a mortgage to which Lessard’s title was subject. Prior to the foreclosure, Lessard undertook to purchase adjoining property from Sleeper for the sum of $15,000 by an agreement dated August 29, 1946, more particularly set forth in Lessard v. Sleeper, 96 N. H. 268, 269. A second mortgage to Sleeper of the hotel property acquired by Lessard in 1945 was placed in escrow pursuant to the agreement, and was the subject of the litigation in which the last cited opinion was rendered. It now appears that in June, 1950, the mortgage and the note secured thereby were assigned by Sleeper, and the assignee’s claim to the fund held by the bank is founded upon that mortgage. The claim of the United States is based upon liens for taxes assessed against Lessard in 1947 and subsequent years. Notice of the first lien was filed in the office of the Clerk of the United States District Court on May 28, 1948, and like notices were filed in subsequent years.
¶2The Trial Court ruled that “as a result” of the entry of final judgment upon an order dismissing the bill in Lessard v. Sleeper, “there was a valid mortgage existing between Lessard and Sleeper,” which had priority over the liens of the United States. In the opinion now rendered, which holds the second mortgage valid, apparently for the same reason, I am unable to concur.
¶3It was expressly decided in Lessard v. Sleeper, supra, 271, that the mortgage of August 29, 1946, never became effective, for want of valid delivery. As between Sleeper and Lessard, and their respective privies who are the adverse claimants in these proceedings, that determination is res judicata. Morgan v. Burr, 58 N. H. 470. The question of the validity of the mortgage was then in issue (cf. Laconia Nat. Bank v. Lavallee, 96 N. H. 353), and it was neces*326sarily determined in that action. See 50 C. J. S. 237, 238. The plaintiff Lessard’s right to cancellation of the mortgage depended upon its invalidity, and he was held to be entitled to cancellation provided he should do equity by satisfying any damages occasioned the defendant Sleeper by his breach of contract. It now appears that no decree of cancellation was entered because the condition was never complied with. But Lessard’s failure to take the steps necessary to entitle him to the aid of equity could not operate to make the ineffective mortgage enforceable, or to validate the invalid delivery of the mortgage in 1946. Denial of the aid of equity to Lessard could not deprive him of his title to the hotel. “Having a legal right, the fact his equitable remedy is lost does not show that all his rights are obliterated.” Nashua Hospital v. Gage, 85 N. H. 335, 342. No more could the denial of relief -to Lessard create a property interest in Sleeper which he did not previously have. The mortgage was no more effective in 1951 than it was in 1946. Title still remained in Lessard. Stockwell v. Williams, 68 N. H. 75. It follows that Sleeper never acquired any interest in the premises owned by Lessard and later sold by the bank, and that his recent assignment of the mortgage conveyed no rights in the proceeds from foreclosure of the first mortgage.
¶4Reliance is placed upon a statement in the former opinion that the second mortgage constituted “a constant threat of foreclosure.” The sentence described the mortgage as a cloud upon title, and imported no recognition of a right of foreclosure.
¶5The apparent concern over the chance that Sleeper was damaged by Lessard’s breach of contract to purchase the adjoining property has no proper place in determination of rights in the hotel. As vendor of the other property Sleeper received substantial payments while the vendee was in possession (Lessard v. Sleeper, supra, 270) and the vendee never acquired title because he never accepted the vendor’s deed. Id., 271. No damages have been determined, and the possibility of their existence is no justification for an award of over $9,000 to the assignee upon a mortgage which has previously been held ineffective. This goes beyond protection of the vendor against the nonpayment of any damages that might be assessed against the vendee. In substance, the defendant in the prior litigation is now rewarded for action previously described as a breach of contract on his part. Id.
¶6The liens of the government attached to whatever interest Lessard had in the hotel equity. If in fact that interest was greater *327than the records appeared to indicate because of the invalid second mortgage, the liens attached to the larger interest. See Beland v. Goss, 68 N. H. 257. The statute creating the liens (26 U. S. C. A. s. 3670) operated to vest an immediate interest in the United States (United States v. Greenville, 118 F. (2d) 963, 965) of no lesser standing than that of an attaching creditor. United States v. Savings Bank, 340 U. S. 47. I would give judgment for the United States.