Eastman v. Batchelder

| N.H. | Jan 15, 1858

EastmaN, J.

Upon the facts presented in this case, and assuming that the condition of the mortgage from Tasker to Batch-elder and wife was kept during the life-time of Tasker, ther.e lies at the foundation of this proceeding this question: has the complainant any such title or right as will enable him ¾0 maintain his original bill ?

In Flanders & Wife v. Lamphear, 9 N. H. 201, which was an action growing out of a contract similar to that made by Tas-ker in the present case, the court held that the duty was personal to the mortgagor, and that he could not transfer it to third persons and substitute them in his stead, without the consent of the mortgagees. In that case the plaintiffs gave a deed of the premises to their son, Daniel Flanders, Jr., and he gave back a mortgage, conditioned for the support, by himself, his heirs, executors and administrators, of the plaintiffs during their natural lives, and to pay sundry debts against his father. Subsequent to this the son conveyed the premises to a third person, arid they were again conveyed, so that Lamphear, the defendant, held them by several mesne conveyances from the son, Flanders, Jr. The plaintiffs then brought a writ of entry against Lamphear, and it was decided that it could be maintained, unless it could be shown that the conveyance by the son was made with the consent of the plaintiffs. In remarking upon the terms of the condition of the mortgage, Parker, 0. J., says: “The language seems to be selected with a particular view of securing the performance by the son, so long as he might fulfill it, and after that time by his heirs or personal representatives.”

In Clinton v. Fly, 1 Fairfield 292, (which was a writ of entry, brought against the defendant as the assignee of one Koundy,) a contract in writing had been made between the town of Clinton and Roundy, by which it was agreed that Roundy should suitably maintain his father and mother, and an idiotic brother, during their natural lives ; for which the town agreed to give him the use and occupancy of a certain farm, during the lives of the father and mother, and at their decease to give him a deed, conveying all the right, title and interest of the town in the same; and it was held that the contract was not assignable, it not having been made with Roundy and his assigns; and that it was a personal trust; and the action was sustained, and the town recovered the land of Roundy’s grantee. In the course of the opinion the court remarked, that, if the contract should be held assignable, the persons to be supported would be liable to be transferred at the convenience and pleasure of successive assignees, whether they possessed or not the temper and qualities which would enable them satisfactorily to fulfill the trust.

In the present case, a part of the consideration of the deed of the farm to Tasker was the support of Batchelder and his wife during their several lives, by their son-in-law; the object no doubt being to have their daughter and her husband reside with and take care of them in their old age. It was a personal undertaking by Tasker, and to secure the performance of it the mortgage was given. So far as the liabilities and rights of Tas-ker are to be considered, the case cannot be distinguished in principle from that of Flanders and Wife v. Lamphear. During his life Tasker could not have sold the premises and transferred the responsibility of supporting Batchelder and his wife upon third persons, without their consent, and had he done it they could have maintained a writ of entry for the premises.

Batchelder gave a deed of all of his real estate to Tasker, upon the consideration, among others, that he and his wife should be supported on the premises during their lives, by Tasker, his-heirs, executors and administrators. This was a contract which the parties were perfectly competent to make; which was for good consideration on both sides; concerning which no fraud is proved or suggested, and which a court of equity cannot set aside. A court of equity, says Chancellor Kent, cannot control the lawful contracts of parties. 4 Kent’s Com. 181.

For good reasons Batchelder chose to have the contract a personal one, and not to have it extend to the assigns of Tasker. Tasker could not, therefore, transfer the premises and his responsibilities, nor could his creditors, before his decease, have deprived him of the possession of the land, and retained it. Had they taken possession, the condition of the mortgage would have been broken, and Batchelder could have brought his writ of entry and recovered the land.

The mortgage of Tasker to Batchelder was put upon record, and was open to the inspection of all. Independent of that mortgage, Tasker was the owner of the premises, and could convey them by mortgage or otherwise; and the conveyances would be good, provided they should not be defeated by a failure to perform the condition in the mortgage to Batchelder. Tasker’s grantees, however, would take subject to that mortgage, and that would be a matter for them to consider in taking their conveyances. But as the mortgage would be brought to their notice by the record, no fraud could be charged upon Batchelder, and they would have to hold, subject to his claim. They could not take possession of the premises and redeem the mortgage, because the contract was personal with Tasker and did not embrace them.

We call this instrument a mortgage, because every conveyance of lands, made for the purpose of securing the payment of money, or the performance of any other thing in the condition thereof stated, is declared by our statute to be a mortgage. Rev. Stat., chap. 131, sec. 1. But it is not a mortgage that can be satisfied by the payment of money. That is not its condition. There is no provision by which money is to be paid. The condition requires personal services, and those to be performed by John B. Tasker, his heirs, executors and administrators. That is the contract which the parties have fairly and legally entered into, and of which they have given public notice, by placing the same upon the records of the county, and no one has a right to put Batchelder and his wife in a different situation. Suppose John B. Tasker, in his life-time, had broken the condition, and then tendered a sum of money as damages, and brought his bill to prevent a foreclosure, would the court say that it could be done ? If a tender of money could answer for one breach, then it might for others ; and if damages could be paid from time to time, then why might they not be for the entire time? and thus the condition of the mortgage be wholly defeated and the character of the contract entir^y changed.

Lord Eldon says there is a distinction between the breach of a covenant or condition to pay money, and one requiring acts to be done. In the former case relief may be granted against a forfeiture, because the money and interest may be paid as a satisfaction. But where any thing else is to be done but the payment of money, the law having ascertained the contract and the rights of the contracting parties, a court of equity could not interfere. Hill v. Barclay, 19 Vesey 56. And this doctrine is recognized and stated by Chancellor Kent as the rule that now prevails. 4 Kent’s Com. 130.

It has been suggested that, notwithstanding the condition was personal, to be performed by Tasker, yet that the legal possession of the land might be in his grantees, and thus a bill be maintained. But this does not relieve the difficulty. The bill, by whomsoever filed, must call upon Batchelder for an account of the damages sustained, and for possession of the premises, so as to perform the condition; and here the same obstacle is encountered — the want of right to make this demand upon Batchel-der. He has made no contract with any one but Tasker. He has conveyed the lands upon condition that he and his wife shall be supported by Tasker, and by him alone ; and if that condition is not kept he has the right to the possession, and no one can deprive him of it. All persons except Tasker, his heirs, executors and administrators, are strangers to him, and no conveyance by Tasker can affect him.

And if Tasker could not make a conveyance during his life that would deprive Batchelder and wife of the possession, his ad-ministratrix could not after his decease. She could give no better title than he, nor make any conveyance that could transfer the right of support belonging to Batchelder and wife to another place, or to other persons, than those specified in the original contract.

The complainant, then, by his deed from the administratrix, acquired no title to the premises, which gave him a right to call upon Batchelder and wife for the purpose of redeeming the mortgage which they held, or of performing the condition upon which Tasker had received his deed. He had no right to the possession. After Tasker’s death, that condition and contract were to be performed by “ his heirs, executors or administrators not by his “assigns,” or by those of his administratrix, nor by his creditors; but by the persons specified in the contract; and none but those could legally perform the contract, or hold the premises as against Batchelder and wife.

As to Nathaniel Tasker, the mortgagee of John B. Tasker, the orator has no ground of complaint. If he had rendered the account of the amount due upon his mortgages, the complainant could not have obtained possession of the premises, for he had no title himself which gave him the right of possession at that time, even had those mortgages never existed. The administra-trix sold and conveyed to the complainant the equity of redemption. That sale gave no right of possession or right to redeem during the life-time of Batchelder or wife. After her husband’s death, the equity, that is, the right to fulfill the condition of the mortgage to Batchelder and wife, ivas in her as administratrix of her husband, and in no one else, unless in her minor child; and her deed gave the complainant no power whatever to interfere with the premises, so long as Batchelder and wife should survive. Before one who holds the title of a mortgagor can effect the discharge of the mortgage, or remove prior incumbrances, he must show a good title in himself, and a legal right to redeem. Farr v. Dudley, 1 Foster (21 N. H.) 372. That case was a decision on proceedings under the statute; but the principle may be applied here. The complainant had no title that authorized him, at that time, to call upon Nathaniel Tasker for an account; nor had he any occasion for such an account, for Tasker could not then foreclose his mortgages, nor obtain the possession, any more than the complainant. Indeed, their rights would not seem to be very conflicting.

If these views are correct, it is evident that the prayer of the bill could not have been granted at the time it was filed; Batch-elder and wife being then alive, and in the occupation of the premises, and the complainant standing in no position that could give him the right to take the possession or fulfill the terms of the contract. The new parties, in the bill of revivor, are all legatees or devisees under the will of James Batchelder. This bill has been taken as confessed, and all its material allegations are therefore admitted. The confession admits the commencement of the former' proceedings, and the abatement of the same by the death of Batchelder and wife, before they were completed. It admits, further, that these defendants claim under the will, and that Ransom and Mrs. Tasker have possession of the land. But the confession admits no rights to exist in the complainant beyond what were in him prior to the death of Batchelder. And if, at the time of filing his original bill, and during the lives of Batch-elder and wife, there was no foundation upon which the bill could rest, the new matter introduced into the new bill cannot give him a decree. New matter may be introduced into a bill of revivor and supplement, so that defects in the original bill, arising from subsequent events, may be supplied. Westcott v. Cady, 5 Johns. Ch. 334; Pendleton v. Fay, 3 Paige Ch. 204" court="None" date_filed="1831-04-03" href="https://app.midpage.ai/document/pendleton-v-fay-5547945?utm_source=webapp" opinion_id="5547945">3 Paige 204. But this cannot be done with anyv effect where there is nothing in the original bill by which it maybe sustained. 3 Danl. Ch. Prac. 1722; Bampton v. Burchett, 5 Beaven 330. The original bill must show a case for the complainant, otherwise the new matter would be a new cause in court.

Entertaining this opinion in regard to the complainant’s rights in the present proceedings, it becomes unnecessary to consider the alleged foreclosure, as sot forth in the amendment to the original answer. Were that under consideration, the first inquiry would be, whether the foreclosure had been legally and in good faith perfected. If John B. Tasker, in his life-time, suffered a foreclosure in order to cut off his creditors; or if Mrs. Tasker, after his decease, permitted her father to take and hold possession for the purpose of effecting the foreclosure, and thus placing the title in him, that the property might go to her and her brother under the will, in either case the act would be fraudulent and the foreclosure probably fail.

Aside from the foreclosure, there would seem to be nothing to cut off the rights of Nathaniel Tasker, or of the other creditors. If the mortgage to Batchelder was not legally and in good faith foreclosed before the decease of Batchelder and wife, the property, upon their death, would belong to the estate of John B. Tasker, to be administered upon according to law, and the will of Batchelder could not operate upon it.

It would seem also that Martha P. Tasker, having given a deed of the equity, with covenants, would be estopped from disputing the validity of that deed. Heard v. Hall, 16 Pick. 457.

But we do not propose to consider these questions, or others that might be suggested, or to give any opinion upon them at the present time. The position of this ease does not require it. Should other and new proceedings be instituted, they can then be examined and decided.

As the complainant, at the time his bill was filed, had no cause of action to sustain the bill or give him a decree, and as the subsequent, matters cannot cure that defect, the

Sill must be dismissed.