Flanders v. Lamphear

9 N.H. 201

Opinion

Parker, G. J.

*

We are of opinion that it sufficiently appears, from the terms of the condition in this case, and the circumstances under which the mortgage was made, that the mortgagor was to remain in possession until the condition was broken, or waste done ; and that no action can be maintained until that is shown. 2 N. H. R. 453, Hartshorn vs. Hubbard; ante 117, Dearborn vs. Dearborn. The mortgage was made on the same day with the conveyance to the mortgagor, and is taken to secure the performance of acts to be done, which may extend through a long period of years. It is a necessary implication, nothing appearing to the contrary, that the parties did not contemplate that the mortgagees should take possession and retain it until their decease, while the mortgagor was duly performing, from time to time, those acts, to secure the due performance of which the mortgage was executed.

Upon the second question suggested, we think the place of performance is not necessarily the place conveyed. Although it may have been contemplated, by the parties to the conveyance, as the probable place of performance, there seems to be nothing in the condition of the mortgage that is thus restrictive : and if, as we understand, the deed from the father to the son is in the common form of a grant in fee simple, we cannot hold that he is restrained from alienation, without something more on which to found the restriction than the mere fact that the son binds himself to maintain his parents, and executes a mortgage to secure the performance of the obligation. The obligation should be performed at some suitable and convenient place to the mortgagee, and at the same time one which does not impose hardship upon the mortgagor. It should be a reasonable place for both parties, 2 N. H. R. 77, Currier vs. Currier.

But the language of the condition, and the relationship of the parties to the deed, indicate, clearly, that there was a personal trust reposed in the mortgagor, and a personal obligation assumed by him, which he cannot assign over to third persons, substituting them in his place. It does not appear that he executed any bond in the usual form; and the term “ provide,” if the matter depended solely upon the force of that term, might perhaps be satisfied, if through his instrumentality what was to be furnished was delivered by others. But this is a case of a son executing a deed, by the condi-tian of which he was to “ provide for his honored parents, in sickness and health, during their natural lives, and to give them a decent burialand the express language of the concluding clause is, that “ if the said Daniel Flanders, jr.. by himself, by his heirs, administrators or executors, shall provide” &e. The language seems to be selected with a particular view of securing the performance by himself, so long as he might fulfil it, and after that time by his heirs or personal representatives. 1 Fairfield 292, Clinton vs. Fly.

If, therefore, the mortgagor has attempted to transfer this duty to third persons, and no longer superintends, at least, the due fulfilment of it; unless this has been done by the assent of the demandants; there has been a breach of the condition, which will entitle them to judgment. How this is, the case does not find ; and if this matter is in controversy the case must be discharged, and the action stand for trial.

Wilcox, J., having been of counsel did not sit.