Webb v. Stone

24 N.H. 282 | Superior Court of New Hampshire | 1851

Bell, J.

There is nothing in our statute relative to personal mortgages which prescribes any different rule as to the description of the debt secured, from that required at common law. Substantial correctness, such as may prevent mistake or uncertainty as to the debt intended, is all that has ever been required. The ordinary rules applicable to the description of persons or property, apply to the description of the debt. If necessary, in order to understand what person or thing is meant, courts inquire into all the circumstances of the case, and, comparing the description given with all the matters to which it might apply, or might be supposed to apply, if they find no reasonable doubt as to the person or thing intended, any errors of description in relation to details are disregarded; and where a part of the description, instead of being merely defective and imperfect, is actually incorrect and untrue, the court simply reject the’ incorrect parts, and are governed by the residue. These principles are familiar in their application to the names of persons in wills, and to the descriptions of property, both in deeds and wills. In all cases of description of the person, if it be made with sufficient certainty that the person intended may be distinguished from any other person, trifling omissions or misprisions will not render a devise invalid. Pow. Devises 387; 10 Co. 576; Plowd. Com. 345, a; Foster v. Walker, Cro. Eliz. 106; Rivers Case, 1 Atk. 110. The rule is, that if the description be sufficient to ascertain the land intended to be conveyed, the land will pass, though it does not agree with some of the particulars of the description; and if there be any thing introduced which is inconsistent with the rest of the description, it will be rejected. Lyman v. Loomis, 5 N. H. Rep. 408; White v. Gay, 9 N. H. Rep. 126; Cartwright v. Amatt, 2 B. & P. 43; Cutter v. Tufts, 3 Pick. 272; Jackson v. Marsh, 6 Cow. 281; Wing v. Burgis, 1 Shep. 111.

The same principles apply with equal force to the description of the debt, as of the property by which or the person to whom it is secured. When a note or other obligation is offered in evidence in connection with a mortgage, it is not necessary that all the particulars of it should be specified in the condition, in order to identify it as the note intended to be secured by the mortgage. It will be sufficient if it is so far described that it appears with reasonable certainty to be the note intended to be secured by the mortgage. Robertson v. Stark, 15 N. H. Rep. 109; Colby v. Everett, 10 N. H. Rep. 429; North v. Crowell, 11 N. H. Rep. 251. Upon these well settled rules we think the objection in relation to the variance of the notes from their description in the condition of the mortgage, cannot be supported.

The consideration of these notes was the agreement to convey to the defendant certain real estate. It is contended that this consideration has failed, because the plaintiff has refused to perform his agreement. Now we take the law to be settled here, that whenever one party to a contract refuses to execute any substantial part of his agreement, he thereby gives to the other party the option to rescind the entire contract, by offering to restore what he has received and replacing the parties in their original situation, provided the offer to do this is made in a reasonable time, and the situation of the parties remains so far unchanged that they can be restored to their first position. Luey v. Bundy, 9 N. H. Rep. 298; Kimball v. Grover, 11 N. H. Rep. 375; Snow v. Prescott, 12 N. H. Rep. 535; Bank v. Gregg, 14 N. H. Rep. 331. The party who would take this ground must do so distinctly and unequivocally. He cannot treat the contract as binding and as rescinded at the same time. Here, till the trial, the agreement of the plaintiff has been treated as binding. The defendant occupied a part of the land one or two years. He has never offered to return the agreement, or demanded the return either of his or Amey’s notes, or the cancelling of his mortgage. On the contrary, he called on the plaintiff for a deed in the fall of 1847, and at other times. He bargained the land to a third person, who, in the spring of 1848, applied for a deed. And in short, he has done no act indicating an intention to avoid the agreement. The entire contract which at the first formed the consideration of the notes, still remains in force; is as valid now as it ever was; and the consideration of the notes has not failed, either in whole or in part.

There does not seem to have been even a breach of the agreement to convey the land, if the facts are truly stated. By the agreement, when the writings were to be made Stone was to put Webb in possession of the security he held for the payment of Amey’s notes. It does not appear what that security was, nor what was its value. But, whatever it was, Webb was entitled to have it when he executed the writings. The defendant shows that he had the money to pay his own notes, and offered to pay them, but it is not shown that any offer was made to give up the security for the Amey notes. The plaintiff assigned as a reason for refusing to convey, that one of the Amey notes was not good. He had a right to insist that that note should be made good, so far as the security would go, and he had the right to refuse to make the writings until that security was placed in his possession.

Judgment on the verdict.