Sargent, J.
If this were an action of covenant broken, it would seem upon the authority of Howe v. Howe, 1 N. H. 49, to be rightly brought in the name of Philip Northy. Gardner v. Gardner, 10 Johns. 47.
The statute of uses, which it is claimed applies in this case, can have no application here, or in any case of a mortgage, until foreclosure. The mortgagees have only a security and not a vested estate. They are not tenants in common, and have' not, till entry, any right to the rents and profits. Johnson v. Brown, 31 N. H. 405. For certain purposes, to be sure, the mortgagee is treated as the owner of the land mortgaged, but it is only for the purpose of protecting his interests; but for all other urposes the interest of the mortgagee in land, before entry to foreclose, is a mere chattel, a security of the debt and passes with the debt, so that the owner of the claim secured can bring his suit upon the mortgage in his own name, without any actual assignment of the mortgage, and even where the note or claim has not been so transferred in law as to enable him to bring a suit upon that in his own name. Southerin v. Mendum, 5 N. H. 420; Smith v. Moore, 11 N. H. 55; Glass v. Ellison, 9 N. H. 69; Rigney v. Lovejoy, 13 N. H. 247.
In this case a mortgage was given to Philip Northy, to secure the performance of certain conditions in favor of said Philip and his wife, also a condition in favor of Myron J. Northy, and one in favor of Esther Northy. But it will be seen that the whole consideration proceeded from Philip Northy, and it does not appear that Myron J. or Esther were parties to any contract. There was a gift from Philip to each of them, to be delivered at a stated time, and he takes the security for the delivery or payment of these sums, and holds it for their benefit, as their trustee perhaps; and we think he is the proper person to enforce the contract which he has made for their benefit, and to which they were in no wise parties.
^ We think the suit is properly brought in the name of Philip Northy, and by him, upon a contract to which he was the sole party on one side, and upon a security which, he took to himself alone for the benefit of those whom he intended to aid, and that there is no occasion for joining any other person with him as plaintiff. If defendant had given a mortgage to one to secure two or more notes which he had given and promised to pay to different individuals, the case might be different; it would clearly be so, where a mortgage is given to secure several- notes, all payable to the same man, who afterwards disposes of some of the notes to one, and the rest to another, as in the case of Johnson v. Brown, supra.
The question is raised here, whether, in a writ of entry, an off-set will be allowed at all as a defence, even though it might properly be filed in a suit upon the note sécured by the mortgage. Let us examine a mo[145]*145ment and see what are the issues that may be raised in this action by the pleadings. Defendant may plead the general issue, mil disseizin, or he may plead non est factum. He may disclaim in whole, or in part, though generally in case of a mortgage he will be unable to do so as the mortgager ordinarily remains in possession till action brought. So in case of a mortgage he may plead tender of the whole amount due upon the mortgage, before condition broken, and by the provisions of our statute he may plead the tender at any time before foreclosure. Rev. Statutes, ch. 131, sec. 13.
He may plead payment of the mortgage debt at the time it was due, or' he may plead payment after breach of condition, because if the money is then received and accepted, it is a waiver of the breach. He may plead usury and ask a deduction because that may be a bar to the whole debt, or it may reduce the amount legally due upon the mortgage debt. Story’s Pleadings, 427 ; Duvall v. Atwood, 41 N. H. 346.
There may be other pleas, such as that the mortgage note is founded upon a gaming consideration, or that it was given to compound a felony, or was obtained by duress, or that the mortgage has been discharged. Dixon v. Cuyler, 27 Geo. 248.
But, in addition to all these defences, can the defendant file an off-set and have that allowed upon the plaintiff’s claim, or, if large enough, have it applied so as to defeat the plaintiff’s action? We are not aware that this question has been settled in this State. In Ohio it has been held that in scire facias on a mortgage to charge the lands in execution, the same defence may be set up that might be in an action on the obligation which the mortgage was given to secure. Raguet v. Roll, 7 Ham. 76. It would seem that the law is held the same in Michigan, and that an off-set there stands on the same ground as payment. Adair v. Adair, 5 Mich. 204.
So in New York it is held that a debt, due from the mortgagee to the mortgager, may be off-set against the amount due from the latter on the mortgage, and that such off-set may be made alike in case of proceedings at law or in equity, as the statute'of that State puts the set-off in both courts upon the same footing; and that, upon a bill to foreclose a mortgage, or to obtain the amount due from the defendant, the latter may off-set a debt, due to him from the complainant, which would be a proper subject of off-set in a suit brought by the complainant at law to recover the amount due upon the mortgage. Chapman v. Robertson, 6 Paige, 627; Holden v. Gilbert, 7 Paige, 208; Knapp v. Burnham, 11 Paige, 330; Rawson v. Copland, 3 Barb. ch. 166.
So in Massachusetts, Thayer v. Mann, 19 Pick. 535, which was a writ of entry to foreclose a mortgage given to secure three notes, the defence was payment and a set-off. At the trial the court instructed the jury that if the notes had been fully paid or set-off, they should return a verdict for defendant, and this ruling was sustained. So in Vinton v. King, 4 Allen, 562, which was a writ of entry to foreclose a mortgage, where the plea was that the note seemed by the mortgage was obtained by duress. It was held that in an .action by a mortgagee against his mortgager, on a mortgage given to secure payment of a note, the ,defend[146]*146ant may show the same matters in defence (the statute of limitations excepted) which he might show in defence of an action on the note. And under our law the statute of limitations would not constitute an exception.
Some of the reasoning in Bailey v. Metcalf, 6 N. H. 156, and in Ela v. Pennock, 38 N. H. 154, would seem at first to be opposed to the adoption of a similar rule in this State. But upon more careful examination, they will not be found to conflict with such a position. But the doctrine of Concord v. Pillsbury, 33 N. H. 310, which was debt on an official bond, seems to be in point, that where payment could be pleaded, an off-set might also, in a case like this. It is there said: “A set-off in this case has the effect of a payment. It shows that the principal defendant is not now legally bound to pay the money demanded of him. The court has no power to refuse a set-off in any case where the party had by law a right to offer it. It is a legal defence of which the party has a right to avail himself in any proper action.
Free access — add to your briefcase to read the full text and ask questions with AI
Sargent, J.
If this were an action of covenant broken, it would seem upon the authority of Howe v. Howe, 1 N. H. 49, to be rightly brought in the name of Philip Northy. Gardner v. Gardner, 10 Johns. 47.
The statute of uses, which it is claimed applies in this case, can have no application here, or in any case of a mortgage, until foreclosure. The mortgagees have only a security and not a vested estate. They are not tenants in common, and have' not, till entry, any right to the rents and profits. Johnson v. Brown, 31 N. H. 405. For certain purposes, to be sure, the mortgagee is treated as the owner of the land mortgaged, but it is only for the purpose of protecting his interests; but for all other urposes the interest of the mortgagee in land, before entry to foreclose, is a mere chattel, a security of the debt and passes with the debt, so that the owner of the claim secured can bring his suit upon the mortgage in his own name, without any actual assignment of the mortgage, and even where the note or claim has not been so transferred in law as to enable him to bring a suit upon that in his own name. Southerin v. Mendum, 5 N. H. 420; Smith v. Moore, 11 N. H. 55; Glass v. Ellison, 9 N. H. 69; Rigney v. Lovejoy, 13 N. H. 247.
In this case a mortgage was given to Philip Northy, to secure the performance of certain conditions in favor of said Philip and his wife, also a condition in favor of Myron J. Northy, and one in favor of Esther Northy. But it will be seen that the whole consideration proceeded from Philip Northy, and it does not appear that Myron J. or Esther were parties to any contract. There was a gift from Philip to each of them, to be delivered at a stated time, and he takes the security for the delivery or payment of these sums, and holds it for their benefit, as their trustee perhaps; and we think he is the proper person to enforce the contract which he has made for their benefit, and to which they were in no wise parties.
^ We think the suit is properly brought in the name of Philip Northy, and by him, upon a contract to which he was the sole party on one side, and upon a security which, he took to himself alone for the benefit of those whom he intended to aid, and that there is no occasion for joining any other person with him as plaintiff. If defendant had given a mortgage to one to secure two or more notes which he had given and promised to pay to different individuals, the case might be different; it would clearly be so, where a mortgage is given to secure several- notes, all payable to the same man, who afterwards disposes of some of the notes to one, and the rest to another, as in the case of Johnson v. Brown, supra.
The question is raised here, whether, in a writ of entry, an off-set will be allowed at all as a defence, even though it might properly be filed in a suit upon the note sécured by the mortgage. Let us examine a mo[145]*145ment and see what are the issues that may be raised in this action by the pleadings. Defendant may plead the general issue, mil disseizin, or he may plead non est factum. He may disclaim in whole, or in part, though generally in case of a mortgage he will be unable to do so as the mortgager ordinarily remains in possession till action brought. So in case of a mortgage he may plead tender of the whole amount due upon the mortgage, before condition broken, and by the provisions of our statute he may plead the tender at any time before foreclosure. Rev. Statutes, ch. 131, sec. 13.
He may plead payment of the mortgage debt at the time it was due, or' he may plead payment after breach of condition, because if the money is then received and accepted, it is a waiver of the breach. He may plead usury and ask a deduction because that may be a bar to the whole debt, or it may reduce the amount legally due upon the mortgage debt. Story’s Pleadings, 427 ; Duvall v. Atwood, 41 N. H. 346.
There may be other pleas, such as that the mortgage note is founded upon a gaming consideration, or that it was given to compound a felony, or was obtained by duress, or that the mortgage has been discharged. Dixon v. Cuyler, 27 Geo. 248.
But, in addition to all these defences, can the defendant file an off-set and have that allowed upon the plaintiff’s claim, or, if large enough, have it applied so as to defeat the plaintiff’s action? We are not aware that this question has been settled in this State. In Ohio it has been held that in scire facias on a mortgage to charge the lands in execution, the same defence may be set up that might be in an action on the obligation which the mortgage was given to secure. Raguet v. Roll, 7 Ham. 76. It would seem that the law is held the same in Michigan, and that an off-set there stands on the same ground as payment. Adair v. Adair, 5 Mich. 204.
So in New York it is held that a debt, due from the mortgagee to the mortgager, may be off-set against the amount due from the latter on the mortgage, and that such off-set may be made alike in case of proceedings at law or in equity, as the statute'of that State puts the set-off in both courts upon the same footing; and that, upon a bill to foreclose a mortgage, or to obtain the amount due from the defendant, the latter may off-set a debt, due to him from the complainant, which would be a proper subject of off-set in a suit brought by the complainant at law to recover the amount due upon the mortgage. Chapman v. Robertson, 6 Paige, 627; Holden v. Gilbert, 7 Paige, 208; Knapp v. Burnham, 11 Paige, 330; Rawson v. Copland, 3 Barb. ch. 166.
So in Massachusetts, Thayer v. Mann, 19 Pick. 535, which was a writ of entry to foreclose a mortgage given to secure three notes, the defence was payment and a set-off. At the trial the court instructed the jury that if the notes had been fully paid or set-off, they should return a verdict for defendant, and this ruling was sustained. So in Vinton v. King, 4 Allen, 562, which was a writ of entry to foreclose a mortgage, where the plea was that the note seemed by the mortgage was obtained by duress. It was held that in an .action by a mortgagee against his mortgager, on a mortgage given to secure payment of a note, the ,defend[146]*146ant may show the same matters in defence (the statute of limitations excepted) which he might show in defence of an action on the note. And under our law the statute of limitations would not constitute an exception.
Some of the reasoning in Bailey v. Metcalf, 6 N. H. 156, and in Ela v. Pennock, 38 N. H. 154, would seem at first to be opposed to the adoption of a similar rule in this State. But upon more careful examination, they will not be found to conflict with such a position. But the doctrine of Concord v. Pillsbury, 33 N. H. 310, which was debt on an official bond, seems to be in point, that where payment could be pleaded, an off-set might also, in a case like this. It is there said: “A set-off in this case has the effect of a payment. It shows that the principal defendant is not now legally bound to pay the money demanded of him. The court has no power to refuse a set-off in any case where the party had by law a right to offer it. It is a legal defence of which the party has a right to avail himself in any proper action. The power he has to make an application of his claim in set-off to any debt in suit, is like his power to apply the payment he makes to any debt he chooses,” &c.
We think, then, that a set-off may be pleaded in a writ of entry upon a mortgage given to secure a debt, wherever it might properly be filed in an action on the debt thus secured.
Whenever judgment is to be rendered for the plaintiff, our statute provides that “the judgment shall be conditional that if the mortgager or person having his right shall pay to the mortgagee, or person having his right, the sum the court shall adjudge due, within two months after judgment rendered, with interest, such judgment shall be void, otherwise a writ of possession shall issue.” Rev. Stat. ch. 190, sec. 11.
In determining or adjudging the amount due, reference is to be had to the time of the judgment, and not to the date of the writ, as in ordinary cases. Stewart v. Clark, 11 Met. 384.
It is objected to the set-off in this case that it is a claim for unliquidated damages, and one that is not a proper matter for set-off. But there is nothing in the nature of the claim itself which would lead us to that conclusion. A claim for board is a proper matter to file in set-off. Ordinarily, anything that might be recovered in an action of indebitatus assumpsit is a proper matter for set-off, and our statute carries the matter further than that in some particulars. But though there is no objection to the set-off on account of its form, or the nature of the thing charged, yet it must depend upon the proof, as to whether the off-set can be properly allowed.
If this claim for board is one that belongs to Esther’s husband to pay, as it would ordinarily be presumed to be, without any other facts in the case, then whether it can be off-set here must depend upon the fact, whether Esther’s husband has reduced this gift to possession so as to be entitled to receive this money himself. If he has taken no steps, and shall take none, to reduce this legacy to possession or appropriate it in any way to his own use, it would remain for the sole benefit of his wife, and an off-set of a claim against the husband, such as a claim for the [147]*147board of his wife and child, could not be allowed in such a case while thus situated. Parsons v. Parsons, 9 N. H. 321; Marston v. Carter, 12 N. H. 159; Pierce v. Dustin, 24 N. H. 417. In the last case cited the legacy was given to the sole and separate use of the wife, where it was held that the husband could not release it or appropriate it to his own use, and if the statute of 1860, Pamphlet Laws, p. 2248, applies to this case, then this gift would be to the sole and separate use of the wife, and the husband could not control it if he would. The deed and mortgage in this case were given before the passage of that law, but the money here sued for did not become due, and this suitwas not brought till after the law went into effect. Whether the law of 1860 applies to this case or not is not probably material.
Whether any charge for board could be made against the wife so as to be filed in off-set in this case, must probably depend upon the fact whether or not she is so situated as to come within the provisions of our statute authorizing her to sue and be sued as though she were sole and unmarried in all cases : Pev. Stat. ch. 149, secs. 1 — 4; or on a contract made with her in respect to her separate property : Laws of 1846, ch. 326, sec. 4; or in a matter pertaining to said property, Laws of 1860, ch. 2342, sec. 3; Jordan v. Cummings, 43 N. H. 134.
The defendant was to furnish said Esther with a home, so long as she' paid her way, &c. This provision is entirely distinct from the other, that provides for the payment of the $75.00. It would seem that Philip Northy intended to provide a home for this daughter with himself until she might have one of her own, but that she was to be expected to aid and assist the family while she resided there, and it was the understanding that she would pay her way. She could leave at any time she chose, but under this arrangement we think she would be entitled to a home there until she was notified by defendant that this arrangement would not continue longer and that he could not furnish her a home longer for what she did for him. She might consider that she was paying her way, and might wish to contest that point with defendant, or she might on notice conclude to perform more labor, so as to be satisfactory to defendant, or she might choose to leave and provide a home for herself-elsewhere. If she could not pay her way, and was notified by defendant that he could not furnish her a home longer for that reason, then she might provide for herself elsewhere, or, if poor and in need of relief, her husband would be liable for her support: Rumney v. Keyes, 7 N. H. 571; and the claim for board must be against him alone, unless she is in a position to be sued for it, as though she were sole and unmarried, either generally, or as being a contract made in respect to her separate property or pertaining thereto. .
Case Discharged.