Ridley v. Ridley

87 Me. 445 | Me. | 1895

Emery, J.

Henry Eidley once owned and occupied a farm. He conveyed the farm in fee to his son, Horace, and took back a mortgage, conditioned that "the said Horace D. Eidley shall well and faithfully support and maintain said Henry Eidley and his wife on said premises during the term of their natural lives and the survivor of them,” etc. Horace D. Eidley entered into occupation of the farm, and faithfully performed the condition of the mortgage for nine years and up to the day of his sudden death, June 14, 1893. He left a widow and minor daughter. Immediately after the burial, the widow, in behalf of herself and daughter, offered to perform the condition of the mortgage, and, after being appointed guardian for the minor daughter, renewed .the offer. Henry Eidley, the mortgagee, declined to receive performance of the condition at their hands, and undertook to expel them from the premises and take possession himself, and to foreclose the mortgage for condition broken. They have elected to consider themselves disseized by this act of Henry Eidley, and have brought, in the name of the daughter and heir, a writ of entry against Henry Eidley to recover possession.

At the trial, the presiding justice was of the opinion that both parties had rights and interests which could be better determined and enforced by proceedings in equity, and he directed the parties to strike out their pleadings at law and plead in equity, under chapter 217 of the statutes of 1893. This the plaintiff declined to do, questioning the authority of the justice to make such order. Instead of nonsuiting the plaintiff, or otherwise enforcing his order., the presiding justice consented to report the case to the law court. It is now before us as an action at law, the plaintiff insisting on a judgment at law, and declining to avail herself of the statute of 1893. Without exercising our power under that statute, ive proceed at her request to examine the question of strict law, whether she was entitled to the possession of the premises at the date of her writ.

The plaintiff claims that, as sole heir of Horace, she inherits the farm as his real estate, subject to the mortgage, and that she also inherits his right to perform the conditions of the mortgage, and to have possession of- the farm for that purpose. The defendant claims that, while the plaintiff may inherit the farm, subject to the mortgage, she does not inherit any right to perform the condition of the mortgage, and hence has no right of possession as against him, the mortgagee. The case evidently turns upon the question whether the condition of this mortgage can be performed by an heir of Horace, the mortgagor, without the consent of Henry, the mortgagee.

It is to be noticed that the mortgage does not provide, in terms, that the condition may be performed by any heir, or assignee, or other representative of the mortgagor. By its terms, the mortgage can be satisfied only by Horace D. Ridley. In ordinary mortgages, to secure the payment of money or some like impersonal duty, the omission of the words "heirs” or "assigns” would have no effect to limit the right of performance of the condition to the mortgagor personally. In such cases it could make no difference to the mortgagee, who paúl the money or rendered the impersonal service, and hence he could not equitably refuse to receive the performance from an heir or assignee of the mortgagor. The cases cited by the plaintiff amply establish this proposition.

The duty or service which this mortgage was given to secure is not of an impersonal character, like the payment of money. Much of the comfort of old age depends upon other things than food, clothing and shelter. Manifestations of personal interest, respect and kindness are very sweet to the aged. Domestic harmony and affection are more essential to them than to younger and stronger men. Henry Ridley was seventy years of age and was the absolute owner of the farm. He desired to live and be supported in his old age on this farm. In so disposing of it as to secure such support, he might well have a decided choice as to who should be master of the farm, and have the duty of his support. He might trust one person wThen he would not trust another. He might lovingly trust a son, when he would not trust a son’s widow or child. We think in mortgages of this kind, the omission of any reference to a performance of the condition by an heir or assignee of the mortgagor, indicates an intent that the mortgagee need not receive the service from such heir or assignee.

There are authorities for holding that such a condition as this is of a personal nature, creating a personal trust. In Clinton v. Fly, 10 Maine, 292, one Roundy, Sr., had conveyed his farm to the town of Clinton for his support. The town agreed to give Roundy, Jr., a deed of the farm, if he would support his father during his life. In this agreement no mention was made of heirs or assigns. Held, that an assignee of Roundy could not perform the condition. In Eastman v. Batchelder, 36 N. H. 141, Batchelder gave a deed of his farm to one Tasker, and took back a mortgage conditioned that he should be supported upon the premises during his natural life by Tasker, his heirs, executors or administrators. No mention was made of assigns. Held,, that a grantee of Tasker was not entitled to perform the condition or redeem the mortgage. This case was cited with approval in Bryant v. Erskine, 55 Maine, 156. In this latter case, the mortgage was conditioned that "Linscott, [the mortgagor] 'his heirs, executors or administrators, should support,” &c. It was held, that the assignee or grantee of the mortgagor could not maintain a bill to redeem, without alleging and proving that the assignment was with the consent of the mortgagee. In Greenleaf v. Grounder, 86 Maine, 298, the condition of the mortgage was that the mortgagor should support the mortgagee on the farm. A judgment creditor levied on the mortgagor’s interest in the farm, and then brought a writ of entry to eject him. Held, that the mortgagor was entitled to the possession as against even his own levying creditor, since the creditor could not perform the condition of the mortgage. The court, speaking through Mr. Justice Walton, said it was settled law in such cases, (where the mortgagee is to be supported on the premises) that the possession is more that of the mortgagee than of the mortgagor, and that neither can be ejected without the mortgagee’s consent. In the opinion, the cases of Bodwel Granite Co. v. Lane, 83 Maine, 168, and Wilson v. Wilson, 38 Maine, 18, were plainly distinguished. It may be further noticed that in Wilson v. Wilson, one, at least, of the surviving persons to be supported consented to the transfer.

It is true that in all the above cases the question was whether an assignee of the mortgagor could perform the condition. The question of the right of the heir of the mortgagor did not arise. It must be evident, however, that the heir is within the principle of these cases. The same reasons apply.

The mortgagee in this case does not consent to receive the performance of the condition of the mortgage from the heirs of the mortgagor. The heir cannot force him to receive it, and hence is not entitled to the possession of the farm. The question of strict law presented by the plaintiff must be determined against her.

Plaintiff nonsuit.