13 N.H. 9 | Superior Court of New Hampshire | 1842
The defendant entered without any title
to the premises, either in his own right, or in right of his wife. His wife it seems had a right of dower on the decease of her former husband, John Day, subject to the mortgage under which the plaintiff claims; but it does not appear that the dower had been assigned. If it had been, it could avail nothing against the mortgage.
He is guardian of three of the children of John Day, but their title is subject to the mortgage. If it were not so, a question might be raised, how far the defendant could avail himself of it under his plea.
The plaintiff sues as administrator of Othniel Day, and makes his title under a mortgage from John Day to his intestate. He is the proper person to enforce the performance of the condition of the bond, by a suit upon the mortgage. His intestate alone could have brought the action in his lifetime.
The entry of Rebecca Bancroft into the land is therefore of no importance. She could not lawfully enter, because the mortgage was not made to her, and gave her no title to enter. Her entry and possession cannot avail to the benefit of the plaintiff. He claims nothing under any title from her.
In order to sustain this suit upon the mortgage, it must appear that the condition has been broken. The mortgager, John Day, and his representatives, were entitled to possession until a breach of the condition occurred. 9 N. H. Rep. 201, Flanders vs. Lamphear.
John Day performed the condition during the life of his father, and until the marriage of his mother to Bancroft. After the marriage, the mother lived with Bancroft, and no claim was made for any support during the lifetime of John Day. Under these circumstances it must be considered as voluntarily waived, for the time being ; and the plaintiff' does not contend that there was any breach up to the time of his. death.
Upon his decease, the duty of performing the condition devolved upon his administrator and heirs.
In order to constitute a breach of the condition subsequent •to this, there must be a demand of the support, and a refusal; and the question arises, whether there has been a sufficient demand.
A demand for support was made upon Parkhurst, the administrator of the estate of John Day, by Mrs. Bancroft, which he refused to comply with. It was not necessary to
We are of opinion that it was not essential that the demand should be made upon the mortgaged premises. The land mortgaged was not necessarily the place where the support was to be furnished. Flanders vs. Lamphear, before cited,; 4 Pick. 497, Fisher vs. Fiske.
Nor was it necessary that the demand should be made by the administrator of Othniel Day. The bond and mortgage were taken for the benefit of his wife as well as himself. Although she was not a party to it, she had an interest in the subject matter, and after his death she might well make a demand of what was secured for her use.
Prior to the time when it was made, she had married Bancroft, and had gone to live with him. This did not defeat her right to the support, or her right to ask for it. But it may have an influence upon the demand which was made. The condition of the bond was not to furnish her certain articles, or a sum sufficient for her support, but she was to be supported and maintained with clothing, lodging, washing, mending, and every other necessary of life. She could not make this duty more onerous, by contracting another marriage. There was no obligation to furnish provisions, or lodging, &c., in the use of which her husband should participate, nor did the bond require that she should be supported wherever she might live with him. She must have been ready, when she made the demand, to receive the support at a convenient place, none being designated, and in such a manner as the terms of the obligation required. Whether she could do this without separating from her husband, may admit of question, and the circumstances under which the demand was made do not appear. A mere demand of support, while living at a distance from the place, with her husband, may not have imposed any duty upon Parkhurst, the administrator of John Day, if he objected for that reason. But his refusal, if unqualified, or put upon
And we are of opinion that there must be a farther enquiry into the circumstances attending the demand and refusal ; and for this purpose there must be a
New trial.
