Eastman v. Batchelder

Where a father made a conveyance of a farm to his son, and, at the same time, took a mortgage to himself and wife, with a condition, hy which the son and his heirs, executors and administrators were to provide for the maintenance of his parents during their lives — held, that the duty to make such provision was personal, and could not be transferred to third persons, nor the property be taken by the creditors of the son without the consent of the parents : That, in case of the death of the son, the condition of the mortgage must be kept by his heirs, executors, or administrators; that it could not be by his creditors, nor the property be taken during the lives of the parents, to pay his debts: That the son might make a valid mortgage of the premises to creditors, but that such mortgage would not give the mortgagees power to perform the condition of the former mortgage, or to take possession of the premises during the lives of the parents. That after the decease of the son and of the parents, the property would belong to the estate of the son, if the mortgage had not been foreclosed by the parents. New matter may be introduced into a bill of revivor and supplement, so that defects in the original bill, arising from subsequent events, may be supplied, provided the original bill shows a case for the complainant; otherwise not.

In Equity. The bill was filed February 15,1851, by Royal Eastman, of Somersworth, against James Batchelder, and Polly, his wife, and Nathaniel Tasker, of Northwood. The original bill, together with the answers of the original defendants, and the evidence, present this ease : On the 29th day of March, 1837, the defendant, James Batchelder, conveyed to John B. Tasker — who had married his daughter, Martha P. Batchelder, in January previous — for a consideration stated at $2500, his homestead farm, in North-wood, and two pieces of out land, called the “ Oak hill lot” and the “Mountain lot.” At the time this dead was given, Tasker paid to Batchelder $700, and gave him his note for $550 more ; most of which has been paid. The whole property conveyed was estimated at this time at $2500, the consideration stated. On the same day, Tasker, in further part consideration of the deed to him, gave a life lease to Batchelder, of all the premises conveyed to him, except one undivided half of the homestead and buildings. And also, at the same time, made another conveyance to Batchelder and bis wife, in further consideration of the deed to him, of all the lands conveyed, with this condition: “ That if the said John B. Tasker, his heirs, executors and administrators, shall, at all times hereafter, well and comfortably maintain, support and provide for the said James Batchelder, and Polly, his wife, so long as they, or either of them, shall live, and shall furnish them at all times during said term, at the house by them now occupied, in said North wood, or, should that be providentially destroyed, in some other comfortable and respectable dwelling-house, on the farm by them now occupied, with such meats, drinks, clothing, fuel, lights, medicines, medical aid, nursing, help and attendance, as may be necessary and comfortable for them, and the survivor of them, so that while they, or either of them live, they may enjoy, so far as respects the necessaries and conveniences of life, in health and sickness, the comforts to which they have been accustomed, and which become their age and station in society; and if he shall also, by himself, his family and his servants, at all times treat the said James and Polly with kindness and respect, and, at their death, shall give them a decent burial, with Christian rites, then this deed is to be void.” This conveyance or mortgage, and the life-lease, were recorded in November, 1887, and the deed from Batchelder to Tasker was recorded on the 6th day of September, 1841. There is no suggestion or evidence of any fraud between Batchelder and Tasker, in the making of this contract, or in any of the conveyances that passed between them. From the time of the execution of these instruments, the deed, lease and mortgage, up to June, 1845, the families resided together on the farm, and Tasker fulfilled the condition of the mortgage. During that time he also improved the condition of the farm and repaired the buildings ; expending from two to six hundred dollars thereon. Batchelder also contributed something towards the repairs. In June, 1845, Tasker went to Great Falls, in Somersworth, and entered into trade there — his family, however, remaining at Northwood, on the farm. He continued at Great Falls till May, 1849, when he died, leaving his widow and one child. In the summer of 1848 he failed in business. As to Tasker’s going to Great Falls, the evidence is contradictory whether it was done with the acquiescence of Batchel-der and wife, or not, though the inference which we draw from it is, that Batchelder yielded an unwilling consent to his going. During his absence the farm was carried on under Tasker’s directions, and chiefly at his expense, but not to the entire satisfaction of Batchelder. Batchelder, however, so far as these original papers show, took no legal steps to foreclose his mortgage. On the 6th day of September, 1841, John B. Tasker mortgaged the homestead to Luther Tasker, to secure a note of that date for the sum of $557. This mortgage was afterwards sold and assigned to the defendant, Nathaniel Tasker, and, with the exception of a payment of $43, is now due, with the interest thereon. On the 3d day of February, 1847, John B. Tasker mortgaged the whole premises to the said Nathaniel Tasker, to secure anote of that date for $1800, and that is now due, with the interest thereon, excepting a payment of about $300, made in 1849. In addition to these two debts, John B. Tasker, at the time of his death, was owing about $1900. Martha P. Tasker, his widow, was appointed his administratrix, and the inventory of his estate consisted only of this farm in Northwood, and was appraised at $1970. On the 14th day of August, 1850, the administratrix obtained, from the judge of probate, license to sell at auction all the right in equity which her husband had at the time of his decease of redeeming the premises, to pay and discharge the debts and demands existing against the estate, with incidental charges ; and on the 28th day of October, 1850, sold and conveyed the same to the complainant. On the 4th of January, 1851, the complainant demanded in writing of Batchelder and his wife, who were in the occupation of the premises, an account of all their demands and claims, by virtue of the mortgage to them, and requested permission to enter upon the premises, and perform the condition of the mortgage from Tasker to them, but they did not comply with the demand, and refused to permit him to take possession of the premises, or perform the condition of the mortgage. On the same day the complainant also made a demand on Nathaniel Tasker, of an account of all sums due on his mortgages, but none has been furnished. In the spring of 1850 the said Nathaniel Tasker, as the holder of the mortgages from John B. Tasker to Luther Tasker and himself, offered and tendered performance of the condition of the mortgage from John B. to Batchelder and wife, but they refused to permit him to enter upon the premises, or to perform the condition of the mortgage. After the death of Tasker, in 1849, Batchelder managed and carried on the farm by his servants or tenants, according to his own will and pleasure. It does not appear that the profits of Tasker’s half would equal the amount necessary for the support of Batchelder and wife. The bill prays for an account of all the demands secured by the mortgage of Tasker to Batchelder and wife, and of all damages and costs, if any, incurred by reason of the non-performance of the condition thereof, and of all rents and profits by them received from the premises; and also that Batchelder and wife be decreed to surrender the premises to the complainant, or such control or possession thereof as might enable him to perform the condition of the mortgage. It also prays for an account of the amount due on the mortgages held by Nathaniel Tasker. Since the filing of the original bill and answers, and the taking of testimony, Batchelder and wife have deceased; and in November, 1853, a bill in the nature of a bill of revivor was filed by the complainant against Ransom Batchelder, a son of J ames Batchelder; Martha P. Tasker, the widow of John B., and Frances Lane, a daughter of James Batchelder, and Isaiah Lane, her husband. This bill sets forth the parties to the original bill, and what its prayer and object was, and the several proceedings thereon, and the abatement. It then states that J ames Batehel-der, in 1847, made his will, and appointed Ransom Batchelder sole executor thereof, who caused the will to be proved in- June, 1858 : That Ransom and Martha P., or one of them, have entered into and now hold possession of the premises, claiming an interest therein under the will or otherwise, and taking the rents and profits thereof, and that the parties against whom this bill is brought are the only heirs-at-law of James Batchelder. By the will of James Batchelder the use of the household furniture is given to his wife, stating that he had made provision for her comfortable support and maintenance. One half of his live stock and farming utensils is given to his son-in-law Tasker, and the other half to his son Ransom. What is left of the household furniture, after his wife’s death, he gives to his daughter, Mrs. Tasker, and five dollars to his daughter, Mrs. Lane. He then makes Ransom and Mrs. Tasker legatees of the residuum, and appoints Ransom executor. This bill was taken as confessed, but the defendant, Ransom Batchelder, has filed an amendment to the original answer of James Batchelder, setting forth a foreclosure, by James Batchel-der, of the mortgage to him and his wife, by possession taken February 22,1850, and retained till May, 1853. The conveyance by John B. Tasker to James and Polly Batch-elder was a mortgage, both in equity and by the statute of New-Hampshire. The parties agreed that a mortgage should be given. The instrument has every form and characteristic of a mortgage, and the parties always called and treated it as such. The performance of the condition was not a personal trust and obligation. The parties did not so intend or consider it at the time. This case is not like Flanders v. Lamphear, 9 N. PI. 201. In that case the obligation to support was the substantial consideration of the conveyance of the father to the son, and the conveyance might, therefore, with some show of propriety, be considered a trust; but in this case one half of the farm was paid for by Tasker, and a life-lease of the other half, and all the out lands given back; so that all the consideration Tasker received for the obligation to support Batchelder and his wife during their lives, was the remainder in the one half of the farm and the out lands; a consideration greatly inadequate for such an obligation, and negativing the idea of a trust. If the principle of Flanders v. Lamphear is held to be law, (unsustained as it is by a single authority in this country or in England,) we think it should be at least confined to cases where the obligation to support is substantially the consideration received for the mortgaged premises, and not to cases like the present, where a large money consideration is paid, in addition to the agreement to support. But allowing in this case the performance of the condition to be personal, still the complainant has rights which a court of equity can and should protect. 1. He might have procured the performance of the condition by the “ administratrix” or heir, and the court would have decreed accordingly. 2. The complainant, if he had not a right to the possession of the premises, and to perform personally the condition of the mortgage, had a right to pay what damages had accrued by reason of the non-performance, and thus save a foreclosure. He had the title in the land, subject to the performance of the condition, or payment of all damages and costs which might accrue at any time before foreclosure. It is the obligation to support which in Flanders' v. Lamphear is said to be personal, not the mortgage. If there had been a breach of condition by Tasker in his life time, and Batchelder and wife had entered to foreclose, and Tasker had requested an account of the damages, &c., which had been refused, and he had brought a bill to redeem, the court would have ordered an account taken by a master, and decreed that, upon payment of what damages and costs might thus be found due, the foreclosure should be stayed, and the mortgagor might, from time to time, as the court decreed, have paid the damages within a year from the time they accrued, and thus save his estate. 2 Hilliard on Mortgages 109 ; Adams v. Brown, 7 Cushing 220; Stewart v. Clark, 11 Met. 384; Dewing v. Comings, 11 N. H. 474. The complainant stands as well in this case as the mortgagor himself would have stood. He can just as well pay all damages and costs, which the court, upon account taken, may find due, as the mortgagor himself, or his heirs, executors, or administrators could. It is well settled that damages may be decreed for non-performance of personal services secured by mortgage. 1 Hilliard Mortg. 84; Austin v. Austin, 9 Yt. 420; 27 Maine 242; 11 Met. 384; 20 Pick. 499. This being so, there is in fact no difference whether the obligation to support, &c., is personal or not. Damages can as well be paid by the complainant as by Tasker’s administratrix. This saves the equitable and legal rights of all parties. If the complainant may not save his interest in the land by paying what (if any thing) may be found due on an account taken, Nathaniel Tasker, who is also deeply interested, can be in no better situation. If the complainant had not, at the time of the commencement of this suit, a right to such a decree of this court as (if complied with) would save his rights in the premises, and stay foreclosure, then this court must hold that a breach of condition (when possession is taken) amounts to a forfeiture, because if the proceedings for foreclosure have been legal and regular, both Nathaniel Tasker and the complainant must have stood still and seen the mortgage foreclosed, and all their rights extinguished, without being in any way able to stay proceedings, notwithstanding the value of the farm was more than ten times sufficient to support the mortgagees. I. Eansom Batchelder and Martha P. Tasker stand as the representatives of James and Polly Batchelder, the original defendants, and the case must be decided upon the facts as they existed at the time the original bill was brought. II. The deed from John B. Tasker to James Batchelder, of March 29, 1837, creates a personal trust or contract in Tasker, which could be performed by John B. Tasker, his heirs or executors, and by no one else. Flanders v. Lamphear, 9 N. II. 201; Clinton v. Fly, 1 Fairfield 292. III. Such a contract is not assignable. Chitty on Con. 739; Manders v. Lamphear, and Clinton v. My. IY. It is not strictly a mortgage. It was a family arrangement. The agreement was made by the parties for their own personal convenience ; the court is bound to execute the agreement of the parties when they do not contravene law. This may as well be done by an agreement or conveyance, having some of the forms of a mortgage, as by any other mode of agreement. Bonham v. Newcomb, 1 Yernon 214; 2 Yentris 365. Y. The statute makes every contract conditioned to pay money or do some other thing, a mortgage within the meaning of the act. That is, that the mortgage might be a right to redeem. In other respects the contract or conveyance is not affected by the statute. It does not make a contract assignable which is not assignable at common law. It does nothing more than extend the time in which the mortgagor may perform the condition, but does not give the right to persons not named in the contract or conveyance.