59 N.H. 415 | N.H. | 1879
Both parties claim title from Oliver Bacon, the plaintiff, as devisee under the will executed in 1829 and proved in 1835, and the defendant under the mortgage made in 1824 to Mary and Rebecca Bacon. If the defendant's claim under the mortgage is valid, he has the earlier and therefore the superior title, and is entitled to judgment. Whether the defendant holds the mortgage title depends upon whether the payment by Jacob Bacon to Mary and Rebecca, December 29, 1845, of the amount of the judgment recovered on the mortgage, and the conveyance by them to him of all their rights under the mortgage, operated as an extinguishment of the mortgage title or as an assignment of it.
By the will, the real estate was devised to Jacob, Mary, and Rebecca, upon the condition of their paying all the just debts and funeral charges of the testator. The notes to Mary and Rebecca constituted a part, if not the whole, of the testator's indebtedness. The case does not show that he was owing any other debts at the time of his death; nor does it show that he left other estate sufficient for the payment of these notes, aside from the mortgaged real estate. To entitle Mary and Rebecca to a share in the real estate, they must comply with the conditions of the devise, which they failed to do. Instead of contributing one third each towards the payment of the notes, they chose to enforce the payment of the full amount due upon them by a foreclosure of the mortgage against Jacob, nine years after the death of the testator. By enforcing their claims under the mortgage, Mary and Rebecca refused to comply with the conditions of the will; and hence they took nothing *417
in the real estate under the devise. The conditional judgment recovered by them against Jacob Bacon, and their possession under it for the purposes of foreclosure, compelled him to pay the amount due on the mortgage to protect whatever interest he had in the mortgaged premises as devisee or residuary legatee under his father's will. A payment of the mortgage debt made under such circumstances, accompanied by a release from the mortgagees, operated as an assignment and not as an extinguishment of the mortgage; and such seems to have been the intention of the parties. The reconveyance by Jacob to Mary and Rebecca, and their subsequent conveyance with warranty to Oliver J. Bacon, are circumstances indicating that they understood their title to be absolute. In such a case, justice requires that the mortgage be kept on foot, and the law will uphold it, for the protection of the title of the party paying the money, even in cases where the parties have undertaken to discharge it. Stantons v. Thompson,
Judgment for the defendant.
STANLEY, J., did not sit: the others concurred.
