36 N.H. 141 | N.H. | 1858
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
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
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 con
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.
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
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
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
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.