Wells, J.
— The plaintiff alleges in her bill, that in 1831, her husband, James Pike, conveyed his. farm to his son Dominicus. and in part consideration for the conveyance, took from Dominicus a bond to himself and the plaintiff for their support ana maintenance, during their lives and the life of each of them, and also a mortgage to himself of the farm, to secure the performance of the conditions of the bond. After the death of the husband, his administrator de bonis non recovered judgment against the grantee of Dominicus for the farm, the conditions of the mortgage not having been per[43]*43formed. The mortgage appears to have been foreclosed by the administrator, who, by virtue of a license from the judge of probate, sold the same as the estate of the husband. These facts are established by the proof.
The condition of the mortgage is in substance, that Dominicus shall pay to James one thousand dollars, or “ otherwise fulfil and keep the covenants in a certain bond given by the said Dominicus to the said James and his wife, then this deed and also a certain bond, bearing even date with these presents, given by the said Dominicus to the said James and his wife, to pay the same sum aforesaid, at the time aforesaid, shall both be void,” &c.
One of the defendants claims title under the sale of the administrator.
The plaintiff contends that the title to the farm is held in trust for her support.
The bond to the husband and wife would belong to the survivor. Draper v. Jackson, 16 Mass. 480. And although it was given during coverture, it would survive unless reduced into possession by the husband. Hayward v. Hayward, 20 Pick. 517. To reduce it to possession, the husband must do some act indicating an appropriation of it to his own use, or disaffirming the right of his wife. Stanwood v. Stanwood, 17 Mass. 57; Wedman v. Wedman, 9 Ves. 174. A judgment in the name of both, without suing out execution, shows a disposition not to appropriate it to himself. 1 Roper’s Husband and Wife, 204 and 208. The husband brought an action on the bond in the name of himself and wife, but it is not stated that an execution was taken out, and if it had been, it would only indicate his intention to take the damages, which had then accrued, and could not be construed as an expression of a purpose to divest her of the residue, which might subsequently arise upon future breaches. As the husband did not discharge the bond, as he might have done, nor reduce it into his possession in a legal sense, it must be considered as the property of the wife.
The mortgage was made to the husband alone, and the con[44]*44dition could have been performed by the payment of a thous- and dollars to him, or the performance of the condition of the bond by supporting them. Neither of the conditions was performed by the mortgager. And in the action upon the mortgage, the conditional judgment was rendered for the damages due for not rendering the support. Did the administrator hold the mortgage in equity for the plaintiff? He must be considered as holding it for the same purposes as the husband did, after the recovery of the judgment in his name. The penal sum of the bond is a thousand dollars, and the condition of the mortgage as to the payment of the same sum, appears to have been intended to leave' it optional with the mortgager to pay the penalty of the bond, or to render the support. The husband then held the mortgage for the joint benefit of himself and wife, to secure the payment of the penalty to both or the support of both. If the mortgage had been made to the husband and wife, according to the case of Draper v. Jackson, upon the death of the husband, the wife would have taken it by survivorship. It was made to him, but with the evident purpose to be held for their joint benefit. The debt is the principal thing, and the mortgage is but incident to it, and in equity the mortgage belongs to the owner of the debt. Johnson v. Candage, 31 Maine, 28. Where a debt is due to two persons, and a mortgage is made to one of them to secure it, and the estate is foreclosed, it would not accord with equity, that he should hold the whole estate, and he would be considered as holding in trust the share of his co-creditor. In law the husband and wife are treated for most purposes as one person, but in equity the husband may be the trustee of the wife, and the trust be enforced in the same manner as if he were a mere stranger. Story’s Eq. Juris, sect. 1367 and 1380. The husband must therefore be regarded as holding the legal estate for his own benefit and in trust for the security of the interests of his wife under the bond. The administrator by the recovery of seizin and possession stands in the place of .the mortgagee, and holds the estate also in trust for the plaintiff, and the person to whom the administrator has conveyed, [45]*45and his grantees, having a knowledge of the trust, hold it in the same manner.
There is no evidence that the husband was in debt, or that he contemplated any fraud in relation to future creditors, when he conveyed his farm to Dominicus, and took from him the bond and mortgage. His death took place about seven years after the conveyance. His estate was represented insolvent and the avails of the land were needed for the payment of debts, but the debts must have been contracted long after the conveyance was made. They do not appear to have existed at that time. Such a conveyance cannot be impeached as fraudulent by subsequent creditors. Usher v. Hazeltine, 5 Greenl. 471; Bennett v. Bedford Bank, 11 Mass. 421; Parker v. Nichols, 7 Pick. 111; Parkman v. Welch, 19 Pick. 231. The husband, not being then in debt and not intending any fraud, had the right to make provision for his wife. Nor does the arrangement appear to be without any consideration on her part. She was entitled to dower in the premises conveyed, but relying upon the provision made for her, she has not enforced an assignment of it.
The bond to the husband and wife is mentioned in the condition of the mortgage, which was recorded March 8, 1847. And such registration operates as constructive notice upon all subsequent purchasers of any estate, legal or equitable, in the the same property, according to the American doctrine in cases in equity. Story’s Eq. Jur. § 403. And the provision, made by our statute, c. 91, § 33, in relation to instruments in writing creating or declaring trusts, is, that such recording shall be equal to actual notice. The purchasers must be regarded then as having notice of the bond, and although the whole of it was not inserted in the condition of the mortgage, there was enough to give notice of its existence, and to put purchasers upon inquiry in relation to it. Thus notice of a lease will be notice of its contents. Story’s Eq. Jur. <§> 400. It also appears by the proof, that John Merrill, James, Eunice B. and John Pike and Peletiah Moore had actual knowledge of the condition of the bond and mortgage, and that Moore acted as [46]*46the agent of Collins in procuring the purchase. Notice to the agent is constructive notice to the principal. It is not stated when the five acres were taken by the levy of Moore, but it was before the mortgage was recorded, and it does not appear, that he had any knowledge of its existence at that time. He will therefore hold the part levied upon unaffected by the mortgage. And the part taken by the levy of Johnson Warren is in the same condition.
Free access — add to your briefcase to read the full text and ask questions with AI
Wells, J.
— The plaintiff alleges in her bill, that in 1831, her husband, James Pike, conveyed his. farm to his son Dominicus. and in part consideration for the conveyance, took from Dominicus a bond to himself and the plaintiff for their support ana maintenance, during their lives and the life of each of them, and also a mortgage to himself of the farm, to secure the performance of the conditions of the bond. After the death of the husband, his administrator de bonis non recovered judgment against the grantee of Dominicus for the farm, the conditions of the mortgage not having been per[43]*43formed. The mortgage appears to have been foreclosed by the administrator, who, by virtue of a license from the judge of probate, sold the same as the estate of the husband. These facts are established by the proof.
The condition of the mortgage is in substance, that Dominicus shall pay to James one thousand dollars, or “ otherwise fulfil and keep the covenants in a certain bond given by the said Dominicus to the said James and his wife, then this deed and also a certain bond, bearing even date with these presents, given by the said Dominicus to the said James and his wife, to pay the same sum aforesaid, at the time aforesaid, shall both be void,” &c.
One of the defendants claims title under the sale of the administrator.
The plaintiff contends that the title to the farm is held in trust for her support.
The bond to the husband and wife would belong to the survivor. Draper v. Jackson, 16 Mass. 480. And although it was given during coverture, it would survive unless reduced into possession by the husband. Hayward v. Hayward, 20 Pick. 517. To reduce it to possession, the husband must do some act indicating an appropriation of it to his own use, or disaffirming the right of his wife. Stanwood v. Stanwood, 17 Mass. 57; Wedman v. Wedman, 9 Ves. 174. A judgment in the name of both, without suing out execution, shows a disposition not to appropriate it to himself. 1 Roper’s Husband and Wife, 204 and 208. The husband brought an action on the bond in the name of himself and wife, but it is not stated that an execution was taken out, and if it had been, it would only indicate his intention to take the damages, which had then accrued, and could not be construed as an expression of a purpose to divest her of the residue, which might subsequently arise upon future breaches. As the husband did not discharge the bond, as he might have done, nor reduce it into his possession in a legal sense, it must be considered as the property of the wife.
The mortgage was made to the husband alone, and the con[44]*44dition could have been performed by the payment of a thous- and dollars to him, or the performance of the condition of the bond by supporting them. Neither of the conditions was performed by the mortgager. And in the action upon the mortgage, the conditional judgment was rendered for the damages due for not rendering the support. Did the administrator hold the mortgage in equity for the plaintiff? He must be considered as holding it for the same purposes as the husband did, after the recovery of the judgment in his name. The penal sum of the bond is a thousand dollars, and the condition of the mortgage as to the payment of the same sum, appears to have been intended to leave' it optional with the mortgager to pay the penalty of the bond, or to render the support. The husband then held the mortgage for the joint benefit of himself and wife, to secure the payment of the penalty to both or the support of both. If the mortgage had been made to the husband and wife, according to the case of Draper v. Jackson, upon the death of the husband, the wife would have taken it by survivorship. It was made to him, but with the evident purpose to be held for their joint benefit. The debt is the principal thing, and the mortgage is but incident to it, and in equity the mortgage belongs to the owner of the debt. Johnson v. Candage, 31 Maine, 28. Where a debt is due to two persons, and a mortgage is made to one of them to secure it, and the estate is foreclosed, it would not accord with equity, that he should hold the whole estate, and he would be considered as holding in trust the share of his co-creditor. In law the husband and wife are treated for most purposes as one person, but in equity the husband may be the trustee of the wife, and the trust be enforced in the same manner as if he were a mere stranger. Story’s Eq. Juris, sect. 1367 and 1380. The husband must therefore be regarded as holding the legal estate for his own benefit and in trust for the security of the interests of his wife under the bond. The administrator by the recovery of seizin and possession stands in the place of .the mortgagee, and holds the estate also in trust for the plaintiff, and the person to whom the administrator has conveyed, [45]*45and his grantees, having a knowledge of the trust, hold it in the same manner.
There is no evidence that the husband was in debt, or that he contemplated any fraud in relation to future creditors, when he conveyed his farm to Dominicus, and took from him the bond and mortgage. His death took place about seven years after the conveyance. His estate was represented insolvent and the avails of the land were needed for the payment of debts, but the debts must have been contracted long after the conveyance was made. They do not appear to have existed at that time. Such a conveyance cannot be impeached as fraudulent by subsequent creditors. Usher v. Hazeltine, 5 Greenl. 471; Bennett v. Bedford Bank, 11 Mass. 421; Parker v. Nichols, 7 Pick. 111; Parkman v. Welch, 19 Pick. 231. The husband, not being then in debt and not intending any fraud, had the right to make provision for his wife. Nor does the arrangement appear to be without any consideration on her part. She was entitled to dower in the premises conveyed, but relying upon the provision made for her, she has not enforced an assignment of it.
The bond to the husband and wife is mentioned in the condition of the mortgage, which was recorded March 8, 1847. And such registration operates as constructive notice upon all subsequent purchasers of any estate, legal or equitable, in the the same property, according to the American doctrine in cases in equity. Story’s Eq. Jur. § 403. And the provision, made by our statute, c. 91, § 33, in relation to instruments in writing creating or declaring trusts, is, that such recording shall be equal to actual notice. The purchasers must be regarded then as having notice of the bond, and although the whole of it was not inserted in the condition of the mortgage, there was enough to give notice of its existence, and to put purchasers upon inquiry in relation to it. Thus notice of a lease will be notice of its contents. Story’s Eq. Jur. <§> 400. It also appears by the proof, that John Merrill, James, Eunice B. and John Pike and Peletiah Moore had actual knowledge of the condition of the bond and mortgage, and that Moore acted as [46]*46the agent of Collins in procuring the purchase. Notice to the agent is constructive notice to the principal. It is not stated when the five acres were taken by the levy of Moore, but it was before the mortgage was recorded, and it does not appear, that he had any knowledge of its existence at that time. He will therefore hold the part levied upon unaffected by the mortgage. And the part taken by the levy of Johnson Warren is in the same condition.
It was the purpose of the husband, that the land should be holden for her support, not that she should have the land. If she should take the mortgage by survivorship, she would have the whole estate, which it does not appear to have been his intention, to give to her. Had the condition of the mortgage been to pay a sum of money, she would have been entitled to the money or the land after his decease. She has now a right to her support or to the land, and if she obtains the former it is all she was to have. The land might be worth much more than her support. The fact, that the mortgage was made to himself alone, indicates his purpose of retaining the legal estate under his own control, and in case of his death, that it should pass to his representatives, who might hold it by maintaining her. She comes into a court of equity and asks its aid, and it is not equitable, that she should have any more out of this estate of her husband than what he has bestowed upon her. His bounty was limited to her maintenance, and that she is entitled to receive out of the estate.
It is contended, that Smith, the administrator, Eunice, James, John and Dominicus Pike should be made parties to the bill. But neither of them have any interest in the premises, and cannot be affected by the decree. All the interest, which the three first named had in the premises has been conveyed to John Pike and Collins. It is alleged in the bill and admitted in the answers of Moore and Collins, that the estate has been foreclosed, and if so, neither Dominicus, the mortgager, nor William, his grantee, has any interest in it. Nor has John any interest in it. His interest has been conveyed to Royal B. [47]*47Hanson. The present holders of the estate have no community of interest with the past holders of it.
Hanson claims his title under John, who says in his deposition, that he purchased of James and Eunice by the request of his mother, and that he has paid her for that portion of the land purchased by him. If he has satisfied her ‘for her interest in it, there could be no just reason why the land conveyed to him, and by him to Hanson should be subject to any claim on her part, and as Hanson would not be bound to contribute to her support, there is no necessity for making him a party to the bill.
The defendant Collins having a part of the estate, which is charged with the support of the plaintiff, is bound to furnish it according to the requirements of the bond. And his obligation to do so commences from the time when he took his title. She will be entitled to the damages in arrear from him in proportion to the value of his interest in the land held by him, and he will be liable in the same proportion for the future performance of the conditions of the bond. Whatever sums have been paid by him towards her maintenance will be deducted from the damages due to her, and he will be bound to pay interest on the balance.
The plaintiff claims to hold the defendant Moore as a party to the bill on the ground of fraud, and that he is the tenant to Collins. But as Collins had a right to purchase the estate, there could be no fraud in Moore in acting as his agent in making the purchase. And the claim for the maintenance of the plaintiff exists against the person holding the title, and not against a mere tenant or occupant under him. But as it might become necessary to deprive him of his term, to secure the support of the plaintiff, in case Collins should be unable to furnish his proportion, he was properly made a party to the bill, and as he had notice of the plaintiff’s title, his interest under the lease must be subject to the rights of the plaintiff.
A master must be appointed to determine what proportion [48]*48of the support must be paid by Collins for the future, and also the amount of the past damages.