Hinds v. Ballou , 44 N.H. 619 ( 1860 )

Bartlett, J.

The question is raised as to the rights of Hudson. Indeed, he consented to the arrangement made between Lewis and Humphrey. Eastman v. Batchelder, 36 N. H. 141; Bethlehem v. Annis, 40 N. H. 43. The plaintiff is not entitled to dower as against the mortgage to Hudson, which was executed at the same time with his deed to her husband. Adams v. Hill, 29 N. H. 209; Bullard v. Bowers, 10 N. H. 502. Lewis, to whom the interest of Hinds had been conveyed, expended money in performing the condition of the mortgage, to prevent a foreclosure; and his payment of money to redeem will operate as a discharge or an assignment, substituting him in place of the mortgagee, as may best serve tbe purposes of justice; Adams v. Hill, 29 N. H. 211; and as it would have been manifestly for Lewis’ interest to treat the transaction as an assignment, such an intention is to be presumed, as it would not be inconsistent with the justice of the case, and as no contrary intent is expressed or necessarily implied. Bell v. Woodward, 34 N. H. 96 ; Wilson v. Kimball, 27 N. H. 307 ; Hunt v. Hunt, 14 Pick. 384; 1 Hill. Mort. 339. As against the plaintiff the mortgage must have been regarded as subsisting in Lewis’ hands, after his performance of the condition, for his security.

But it is suggested that Lewis’ agreement to support Hudson formed part of the consideration for the conveyance to him, and therefore the case is to be treated as one where a part of the consideration is reserved by the grantee for the payment of the mortgage debt, as in Bullard v. Bowers, 10 N. H. 500, and Adams v. Hill, 29 N. H. 212. In those cases the reservation or application of part of the consideration money for the discharge of the mortgage wms made by agreement between the demandant’s husband and his vendee, on the sale of the husband’s equity of redemption, and was therefore treated as virtual payment by the husband; but here Hinds was in no way party to the arrangement, and the transaction can not in any sense be regarded as a discharge of the mortgage by him, or with his property.

So far as the demandant is concerned, then, Lewis stood as the holder of the mortgage, and was in possession of the mortgaged premises, and his deed would transfer his interest in the mortgage ; Lamprey v. Nudd, 29 N. H. 304 ; Smith v. Smith, 15 N. H. 66 ; even though it was a deed of quitclaim. Thorndike v. Norris, 24 N. H. 460 ; Hunt v. Hunt, 14 Pick. 380 ; 1 Hill. Mort. 339 ; Hutchins v. Carlton, 19 N. H. 514 ; see Kinnear v. Lowell, 34 Me. 300, and Freeman v. McGreen, 15 Pick. 82. It follows that, .as against the tenant who holds Lewis’ title, the demandant is not entitled to dower, as she has not offered to contribute her reasonable proportion of the money expended by Lewis to perform the condition of the mortgage. Clough v. Elliott, 23 N. H. 182; Bullard v. Bowers, 10 N. H. 504; Gammon v. Freeman, 31 Me. 246; Carll v. Butman, 7 Greenl. 102; Cass v. Martin, 6 N. H. 26; Rossiter v. Cossitt, 15 N. H. 43; Robinson v. Leavitt, 7 N. H. 100 ; Woods v. Wallace, 30 N. H. 388; Adams v. Hill, 29 N. H. 202 : Hastings v. Stevens, 29 N. H. 564.

There must be judgment for the tenant, unless the demandant at the trial term shall elect to become nonsuit.