| Superior Court of New Hampshire | Jul 15, 1839
This action cannot be supported unless there has been a breach of the condition of the mortgage. The farm embraced in it was conveyed to the defendant by Ebenezer Rhoades, one of the mortgagees, on the same day that the bond was taken and the mortgage executed, to secure the support of himself and his wife and daughter during their lives ; and this sufficiently indicates that the defendant was to remain in possession until the condition was broken or the security impaired by waste. Flanders vs. Lamphear, Grafton, July, 1838; 9 N. H. Rep, 201.
If the mortgagees might enter immediately after the execution of the mortgage, and exclude the mortgager until he had performed the condition, that is, during the lives of all the mortgagees, it would doubtless defeat the intention of the parties, and probably deprive the mortgager of the very means
The enquiry is, therefore, whether there has been any breach of the condition.
It was not necessary that the mortgagees should be supported upon the place itself, (9 N. H. Rep. 201;) and the arrangement which was made for the support of the father and the plaintiff, at the house of Bemis, having been made with her consent, or that of those who acted for her, the support was well furnished at that place. No objection or complaint appears to have been made on that account.
The case does not state how the plaintiff left the house of Bemis, nor show that it was incumbent on the defendant to bring her back.
There is nothing in the case to show that he is liable for her support at Antrim. Neither she, nor any one acting in her behalf, or in virtue of her rights, could require him to support her there. If the obligation to maintain her, she being non compos mentis, might be construed to require him to take reasonable precaution against her wandering away, and to provide for her return, on notice, in case his precautions were ineffectual; there is no evidence to show a neglect on his part in these particulars, and he might well refuse to pay the expenses incurred by the town. And, moreover, the selectmen and the town were strangers to the contract between Rhoades and the defendant; and if the contract had been broken could not have enforced the performance of the defendant’s engagements, or have maintained any action.
Nor did the answer of the defendant, when application was first made to him by the selectmen after her return, amount to a breach of the condition. He said they might bring the plaintiff to his house, and he would then send them to Bemis’, and if they would not support her he would. It may be questioned whether the selectmen had any such authority, at this time, as that the defendant was bound to regard or answer their application. But, assuming that they
He assented that they should bring her to his house, and proposed to them to make a demand upon some other person as well as himself, and in case that was not effectual, to comply with the requisition upon himself. Whether he could have required them to bring her, as he proposed, is an immaterial question. They did not decline to do so, and did not follow up the application, on account of a controversy about the expenses incurred, which he was not liable to pay.
But the defendant’s answer to a subsequent application,made under the authority of the plaintiff’s guardian, that he thought it best,to have a trial about it, and that his counsel had advised him to let the town support her, and bring an action against him, and he would then have a better chance to get her on to the Bemises, is evidence of a refusal. It was equivalent to a declaration that he should contest the liability, on account of some advantage that he supposed he should derive, from so doing, in another controversy. It was not necessary that he should say, in terms, that he would not support her. To have carried her to his house, or to the place provided by him, and made a demand, after a refusal, would have been an unnecessary ceremony. There must, therefore, be
Judgment on the verdict.