Leach v. Noyes, 45 N.H. 364

Leach v. Noyes

45 N.H. 364 | N.H. | 1864

Bellows, J.

Upon examining the bill we think there are no allegations that entitle the plaintiff to a decree against the husband. The case stated is a contract of purchase by the wife, a conveyance of a part the land by her to Currier, the giving of her note to the plaintiff for a part of his mortgage debt, and a mortgage of the land retained by her to secure the payment of that note; and that by accident or mistake the deeds and other instruments were so made that no valid security was obtained by the plaintiff of the wife, as was intended and understood there should be. But it is not stated that the husband was a party to these transactions or any of them, or that he assented to the conveyance to the wife, or the giving of the mortgage to the plaintiff, or that he acquired any interest in the land so conveyed to the wife, or ever claimed any, or that he had or claimed any interest in it at the time of filing the bill. All that is stated to connect him with the transaction is that he was the husband of Lucy E. Noyes and that on request for a valid mortgage he denied the validity of said Lucy’s note and mortgage.

This is not as we think sufficient, but, as the bill may be amended upon some terms, we have examined the case upon its merits, and are of opinion that upon the facts before the court upon the bill, answers, and argument, the plaintiff is entitled to relief. It is quite clear that a valid security in place of that which was relinquished by the plaintiff must have been contemplated by the parties, and intended to have been made; and it is equally clear that the security actually given by the wife had no legal validity whatever. Eaton v. George, 40 N. H. 258. By the conveyance the husband acquired an estate in the land, at least during the marriage, and by his answer he seems to have claimed and enjoyed it; and with a knowledge, too, of the manner in which it was acquired, and the securities attempted to be made, at the execution of which he appears to have been present. Under these circumstances neither he nor the wife can in equity and good conscience continue to hold the land without paying the balance due the plaintiff, which is substantially a part of the price.

It is true that no fraud appears to have been intended in resorting to this mode of giving security; but it is a clear case of accident or mistake arising from a misapprehension of the law, which, as it is now settled by Kennard v. George, 44 N. H. 440, is good ground for relief. The defendant, Samuel Noyes, does not appear to have taken any part in making the contract of purchase or in determining the form of the security; but he assented to it, acquired and claimed an interest‘in the land by it, and, unless this court has power to reach that interest in his hands,the plaintiff maybe without remedy, while the defendants, by taking advantage of the mistake, would be enabled to hold the land with*368out the charge which the parties clearly intended to impose upon it. Nor is the case altered by the fact that since the conveyance the land has been set out as part of the defendant’s homestead; for by that act the defendant, Samuel Noyes, has acquired no new title, but, for aught we can see, stands in the same relation to this plaintiff that he did before. It is urged, to be sure, that if the officer had extended his execution upon this land it would have been held by the creditor without being subject to this charge, — and such might have been the case unless there had been notice to the creditor or his agent of the claim, — and yet we think this cannot affect the defendant’s liability, inasmuch as he received his title with the knowledge that it was intended to be subject to the plaintiff’s claim.

• If the defendants had conveyed the land to a third person and for a full consideration even, and yet with notice of the plaintiff’s equity, it would be in accordance with established principles of this court to grant relief against such purchaser; and the defendant, Samuel Noyes, can surely stand in no better situation. He assents to a conveyance which gives him an interest in the land, knowing that the land, by the agreement between the parties, was to stand charged with the payment of the price, and, for aught we can see, he is in no better position than if the land had been conveyed directly to him and the security attempted to be made by him,but by reason of a misdescription or other mistake,the mortgage was invalid.

A question has been made in respect to a demand upon the defendants before suit. As respects the defendant, Samuel Noyes, there was before the suit a request by the attorney of the plaintiff to pay the debt or join his wife in a new mortgage, which he declined upon the ground that he had nothing to do with the matter. No objection appears to ' have been made to the authority of the attorney and, for aught we can see, the demand upon this defendant was sufficient. See Lovejoy v. Jones, 30 N. H. 164.

In respect to the other defendant, Lucy E. Noyes, we are inclined to think that the demand was also sufficient if made in time. Upon that point it appears to have been made after the filing of the bill, and before the'service, and in analogy to suits at common law where demands are often made after purchase of the writ and before service, the officer being directed not to make service until after demand and refusal, we are inclined to regard the demand here as seasonably made.

In Robinson v. Burleigh, 5 N. H. 225, a writ of trover was made and handed to the officer who accompanied the plaintiff to the residence of the defendant, when a demand was made; and upon a refusal to deliver the property, the plaintiff directed the officer to make service of the writ; and it was held by Richardson, C. J., that the suit must be regarded as commenced when the plaintiff elected to make service; and that the demand was admissible. This was put upon the ground, that, although the writ was made before, yet there was no purpose to serve it, until the refusal to deliver the property had made it-necessary. The same doctrine was applied in Graves & al. v. Ticknor, 6 N. H. 537, and it was laid down that the writ is considered as sued out at any *369moment of the day which, best accords with the justice of the case; and such is the doctrine of Badger v. Phinney, 15 Mass., 359, and Seaver v. Lincoln, 21 Pick. 267; in that case instructions-were given to. the officer not to make service of the writ which was given him until notice to the endorser, and then, if payment was made, not to serve it at all, and it was held by Shaw, O. J., that the suit could not be regarded as commenced until after such notice.

To this doctrine we see no objection, nor are we aware of any objections to its application to suits in equity where process may be obtained from the clerk’s office by filing a bill in vacation. If the process is taken with the purpose of making service only in case the defendant shall refuse after demand to do what the bill seeks for, we are not aware of any reason for not treating the suit as commenced after the election to proceed has been made, as in suits at law. The difference between the two classes of suits is in this respect merely formal; and we are inclined to think that the rule applied without inconvenience to suits at law may, with equal safety, be applied to suits in equity. See Hayden v. Bucklin, 9 Paige, Ch. Rep. 512.

We are of the opinion, then, that the demand upon both defendants is sufficient, and the plaintiff, upon making the proper amendments of his bill, will be entitled to a decree upon the principles laid down in Kennard v. George, 44 N. H. 440.

It might be also suggested that it is by no means clear that the plaintiff would not be entitled to relief upon the ground,that, as the security received for the original mortgage debt from Stickney, and for which that debt was given up, has to some extent proved to be wholly unavailing, equity might regard the Stickney mortgage as still subsisting. However, as the plaintiff is entitled to a decree upon the other ground, it is not necessary to determine this question.

Upon making the proper amendments the substance of the decree will be that the defendants join in a mortgage of their interest in this land derived from the conveyance from Stickney, to secure the payment of the balance due according to the note given by the wife.