Adams v. Hill

29 N.H. 202 | Superior Court of New Hampshire | 1854

Gilchrist, C. J.

The plaintiff claims dower in certain lands in Greenland.

Taking the deeds mentioned in the case in the order of time, it appears that on the 2d day of June, 1821, Parrott conveyed to Adams certain lands in Lancaster, and on the 9th of June Adams conveyed them to Whidden. On the same 9th of June, Whidden conveyed the Greenland lands to Adams, who immediately mortgaged tl^rn to Parrott.

On the 2d of June, 3821, Parrott conveyed to Adams lands in Lancaster of the value of $2,200.

On the 9th of June, 1821, Whidden conveyed to Adams lands in Greenland to the value of $4,000.

On the 9th of June, 1821, Adams conveyed to Whidden lands in Lancaster and other places, of the value of $5,000.

On the 9th of June, 1821, Adams mortgaged the Greenland land to Parrott, to secure the sum of $2,200.

When Adams bought the Greenland lands of Whidden, he immediately mortgaged them to Parrott, to secure the payment of the price of the Lancaster lands.

This is the instantaneous seizin alleged to exist by the defendant.

^ The rule is, that of a seizin for an instant, the wife shall not be endowed. Co. Litt. 31 b. That is where the new estate was merely in transitu, and never rested in the husband. Amcotts v. Catherich, Cro. Jac. 615. The seizin for an instant is where the husband by the same act, or by the same conveyance by which he acquires the seizin, parts with it. Thus if a tenant for life make a feoffment in fee his wife shall not be endowed, for by making the same feoffment which passed the fee, he acquired a fee. And if a joint tenant make a feoffment, his wife shall not be endowed, for by the feoffment he was seized of a several estate but for an instant, which he acquired and parted with by the feoffment. Therefore, where A. conveyed to 33. who by deed of the same date mortgaged back to A., it was held that B.’s wife was not dowable. Holbrook v. Finney, 4 Mass. Rep. 566, The execution of the two deeds was held to constitute but one act.

In the case of Clark v. Munroe, 14 Mass. Rep. 351, the mortgage was to a third person, and was made in pursuanee of a previous agreement. It was held that the deeds still constituted but one transaction, and that the wife of the mortgager was not dowable.

In 4 Kent’s Cc|n. 39, it is said that the wife is not dowable “ where the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase money, in whole or in part. Dower cannot be claimed as against rights under that mortgage.”

In the present case, the mortgage was not made to secure the purchase money of the Greenland lands, but of the lands in Lancaster. Still the two deeds would seem to constitute but one transaction, and the estate passes out of him at the same instant he receives it. Slow v. Tift, 15 Johns. 458. The husband is not beneficially seized so as to entitle his wife to dower against the mortgagee, and Kent says this conclusion is agreeable to the manifest justice of the case. There certainly is as much justice in holding that she is not so entitled against the mortgagee, though the mortgage were not given to secure the purchase money of that particular estate. If there be only an instantaneous seizin where the mortgage is given to secure the purchase money of the mortgaged land, the seizin is equally instantaneous here, for it can make no difference what particular debt the mortgager secures.

We think, then, that the plaintiff is entitled to dower on contributing her due proportion of the mortgaged debt. Bullard v. Bowers, 10 N. H. Rep. 500.

When Adams conveyed the land to the defendant, in 1841, he excepted from the operation of the deed the mortgage to Parrott of June 9ih, 1821, and the title of the defendant from Parrott is not by paying the debt to Parrott, and thus discharging the mortgage, but simply by taking an assignment of it. It is true, he holds all the title that Adams had, and all the title that Parrott had, and the two titles, therefore, unite in him. Now by this, prima facie, the mortgage debt is extinguished. Greenough v. Rolfe, 4 N. H. Rep. 357. But that is not be considered as done without regarding the equities of the parties. The debt, even if discharged so that an action could ?not be sustained against the original promiser, still subsists in the nature of a charge or lien upon the land, and upholds the mortgage title as against any one who ought not in justice to take the land from the mortgagee without paying the money. Robinson v. Leavitt, 7 N. H. Rep. 98. So, in the same case, it was held that one who pays the debt as assignee may consider the debt as a lien upon the land, so far as justice may require, as if the debt had actually been assigned. It is also said that where money due on a mortgage is paid, it shall operate as a discharge or as an assignment, substituting him who pays in the place of the mortgagee, as may best serve the purposes of justice, and reference is made to Starr v. Ellis, 6 Johns. Ch. 695.

But the case leaves no doubt on this point, for it is stated that the defendant took an assignment of the debt, and the case speaks of it in no other way.

She, then, may maintain a writ of dower, but it can be only on contributing her proportion of the sum paid on the mortgage, in proportion to her interest. Rossiter v. Cossit, 15 N. H. Rep. 43, and cases there cited by the court.

Another question arises in the case in relation to the effect of the declarations of Hill, the defendant.

It appears that on the 14th of January, 1841, when Adams conveyed the Greenland land to Hill, the latter gave him a bond, reciting that Mrs. Adams was supposed to have a claim of dower in the equity of redemption; that in part payment of the land Hill had given Adams his note for $1,000, payable on demand, and had agreed to pay the further sum of $1,000 in ten years, by instalments, the principal to be paid in one year after Adams should procure his wife’s release of dower; or if she should die before him, then in one year from her death, to pay him such part of the $1,000 as should be equitably due, after deducting the value of the incumbrance of her supposed right of dower, if she had any right, and if he performed his agreement, then the bond -was to be void.

In May, 1851, a witness for the plaintiif called on the defendant, and the latter, after stating the amount due on the mortgages, said that he had paid all the purchase money, ($6,000,) except the sum of $1,000, which he retained, in pursuance of the agreement recited in the bond. The witness then said that it might be necessary for Mrs. Adams to tender her proportion of what had been paid to extinguish the incumbrances, and asked him whether, as he had the reserved $1,000 in his hands, he should require a tender?

He said “ no; he should not think a tender necessary, as he had money enough in his hands to meet Mrs. Adams’ claim.”

Now there is no reason for giving any construction to this language, except what it would obviously bear. It was a simple question put to the defendant, and the answer was distinctly and, to all appearance, understandingly given; and there was no reason why a person of ordinary intelligence need misunderstand either the question or the answer. We think the defendant’s statement rendered a tender unnecessary.

When the husband of a person for whose benefit a provision was made by a mortgagee, purchased the land of the mortgager, and retained in his hands a part of the purchase money, which was not to be paid until the mortgage should be removed, it being reserved to pay the mortgage, it was held that such reservation must be regarded as payment of' his wife’s claim. Bullard v. Bowers, 10 N. H. Rep. 503. We think the reservation must be so regarded in this case.

As to the measure of damages, if there had been no mortgage, she would have been entitled to one-third part of the land. As the mortgage is paid, she is now entitled to that provision and one-third of the income, as the land was in 1841 would be the proper measure of damages.

Judgment on the verdict.