Pettee v. Case , 84 Mass. 546 ( 1861 )

Metcalf, J.

The only question now before the court is, whether the jury were rightly instructed as to what it was necessary that the demandant should prove in order to show that the tenant had committed a breach of the condition of his mortgage before an entry was made on the demanded premises for the purpose of foreclosure. And we are of opinion that the jury should have been instructed that if the tenant — knowing that Venus and Weltha Macomber were at the demandant’s house, intending to reside and be supported there — declared that he would not support them there, and omitted to do anything towards their support there, before entry for foreclosure was made, this was a breach of the condition of the mortgage, although no special demand for such support was made on him. He was bound to support the mortgagees, without their making any demand for support. And they were not bound to receive support at his house, but had a right to be supported wherever they might choose to live, provided they caused no needless expense to him. Wilder v. Whittemore, 15 Mass. 263. On their removal to the demandant’s house, notice of that fact, and of their intention to receive support there, was all that was necessary for the purpose of obliging him to furnish it. Besides; the tenant, by declaring that he would not furnish support at the demandant’s house, would have made a demand unnecessary, even if it had been necessary before such declaration. Brigham v. Clark, 20 Pick. 51.

There is, undoubtedly, some error or omission in the copy of the instructions furnished to us, which greatly obscures their meaning. But neither party has asked to have the copy corrected, and-we must take it as it is. And as we cannot there find that the jury were clearly instructed that they could return a verdict for the demandant, if the tenant, after the mortgagees left his house, and before entry was made for foreclosure, had / notice of their intention to be supported at the demandant’s house, and failed to do anything towards their support there, although no special demand for such support was made on him, the exceptions are sustained, and a

New trial granted.