29 N.H. 564 | Superior Court of New Hampshire | 1854
Mills, at his decease, was seized of an equity of redemption in the land in question.
It must now be regarded, after the numerous decisions determining the point, both in this State and elsewhere, that a widow is dowable, in such an estate, against all persons except the mortgagee and such as may claim under him. Cass v. Martin, 6 N. H. Rep. 25; Rossiter v. Cossit, 15 N. H. Rep. 38, and cases cited; Barker v. Parker, 17 Mass. Rep. 504; Snow v. Stevens, 15 Mass. Rep. 278; Bolton v. Bullard, 13 Mass. Rep. 227. And it is equally well settled that, as against the mortgagee, she cannot be endowed, except upon payment of the entire mortgage.
And it is also well settled, in this State, that where the widow is dowable only in an equity of redemption, if the administrator of the estate shall, with the assets arising out of the estate, pay off and discharge the mortgage incumbering it, it will operate to let in the widow upon her dower, without redemption or contribution on her part. Bullard v. Bowers, 10 N. H. Rep. 500; Rossiter v. Cossit and cases cited there. Do the facts in the present case show a payment and discharge of the mortgage to Cole and Huntington ? In form, as shown by the receipt on the back of the mortgage, the transaction was a payment, by the administrator of Mills, the mortgager, to Huntington, one of the mortgagees, and the mortgage was discharged. A receipt to that effect was made and signed by the mortgagee upon the back of the mortgage. And, as we understand from the facts reported in the case, the full amount of the mortgage was, in fact, paid to the mortgagees from the avails of the sales made of the property of the deceased, and the assets generally in the hands of the administrator belonging to the estate. Besides, as tending to show that it was, doubtless, the purpose of the administrator to pay and cause the mortgage to be discharged, it may be observed that he assumed at the sale, and upon the face of the deed given to the tenant, to convey to him the estate, free from all claims of persons claiming from Mills or his administrator, and warranted the title against all such claims. And it is clear that the mortgage was a claim of the description contemplated by the terms of the warranty.
The administrator had no interest in the estate to be upheld or protected by continuing the mortgage in force. He}
It is contended, in the present case, that the declaration of the administrator, at the sale, that he had paid a part of the debt to Caleb Huntington, and that he would “ pay,” “ lift,” or “ raise ” the mortgage for the purchaser, in connection with the subsequent payment and discharge, constituted an equitable transfer of the mortgage to the tenant. It is true, that the form of the transaction is not material; the effect is to be construed according to the intention of the parties and the substantial justice of the case. Where the money is paid on a mortgage, by a party interested in the estate and entitled to redeem, it will operate as a discharge, or as an assignment of the mortgage, substituting him who pays in the place of the mortgagee, as may best promote the purposes of justice and the just interests of the parties. Robinson v. Leavitt, before cited.
But, we think, the declaration of the administrator, at the sale, cannot be construed as meaning more than that he would cause the mortgage to be paid off and discharged. He had already paid a part, and that he would pay the balance, was the effect of his engagement. He did not contract to purchase the mortgage, and transfer it to the tenant. That would not be a fair construction of his language. It was not in the line of his duty to do this; it was his duty to redeem from the mortgage or else to sell the equity. The former he elected to do, and must be understood to have
Judgment for the plaintiff.