Clark v. Clark , 1875 N.H. LEXIS 15 ( 1875 )

FROM GRAFTON CIRCUIT COURT. It is well settled in this state, by a train of authorities, that a conveyance by a mortgagee, not in possession of the land mortgaged, will not pass the debt secured by the mortgage, and, consequently, will not pass any interest in the land itself attempted to be conveyed. Furbush v. Goodwin, 25 N.H. 451; Hobson v. Roles, 20 N.H. 51; Smith v. Smith,15 N.H. 64; Dearborn v. Taylor, 18 N.H. 157; Weeks v. Eaton, 15 N.H. 148; Bell v. Morse, 6 N.H. 205; Ellison v. Daniels, 11 N.H. 274; Aymar v. Bill, 5 Johns. Ch. 570; Jackson v. Willard, 4 Johns. 42.

Samuel H. Clark, by his will, devised to George W. Clark, and Eliza Clark, his wife, all his interest in the premises which George W. Clark had mortgaged to him, to secure two notes which he was owing him, and to secure him for signing a certain note as surety for George W., and which Samuel H. had been compelled to pay, to have and to hold said mortgaged premises to said George W. and Eliza during their natural lives, remainder to their two children. There was no express mention made of the mortgage debt, and the testator was not in possession of the mortgaged premises, either at the time of the execution of the will or at the time of his decease. If the will is to be governed by the same rules of construction as deeds, probably no interest in the mortgaged premises passed to the devisees; and the question is, What construction shall be given to the language of the will?

In the construction of wills, the court will be bound by the intention of the testator, to be gathered from the whole will, provided it be consistent with the rules of law. Healey v. Toppan, 45 N.H. 264; Malcolm v. Malcolm, 3 Cush. 472. This will was apparently written without the aid of professional advice. It is to be assumed that the testator intended the devisees should take something by his will, but if the rule, that a naked conveyance by a mortgagee not in possession passes nothing, is to be applied, then they take nothing, and his manifest intention is defeated; — for there can be no reasonable doubt, as it seems to me, that he intended, by the use of the language "all my interest in the real estate, of which I now hold a mortgage from my son George W. Clark, situate," c., to devise to his son and wife the mortgage and debt. Without the aid of professional advice, few persons are aware that the debt is the principal and the mortgage is the incident, and that a conveyance of the land does not carry the debt with it.

By his will, he disposes of his property in two directions: (1) The mortgage is given to George W. and wife for life, remainder to their children; and (2) to his daughter Sarah $300, and all the rest and residue of his personal estate to his children, George W. and Sarah. It would seem from this that he regarded the mortgage as real estate, and the rest of his property as personal estate. His interest in the real estate was to hold it as security for the debt; and I am of the opinion that the testator intended to devise not only the land but the debt secured thereby, and that the language of the will is capable of that construction. A devise of lands will pass mortgages held by the devisor, unless a contrary intention can be collected from the language of the will. 1 Washb. on Real Prop. 533, and authorities there cited.

If the devise had been to George W. Clark alone, there would be no difficulty in deciding what would be the effect of such conveyance, as it would undoubtedly operate to discharge him from the payment of the debt; or, if the devise had been to some third person, the devisee could enforce payment of the debt, or foreclose the mortgage; — but the devise is to George W. Clark, and his wife Eliza, for their lives. It is plain that the conveyance cannot operate to discharge him from the payment, because then the wife Eliza would derive no benefit from the devise; and it is equally plain that she cannot enforce payment of the whole debt, or foreclose the whole mortgage, as that would deprive him of any benefit from the devise. We are relieved, however, from inquiring what are the rights of the husband and wife in this respect, by the proceedings in bankruptcy, which were commenced subsequent to the death of the testator, and also subsequent to the death of Charles H. Clark, one of the remainder-men. It appears by the amended bill, that the equity of redemption from said mortgages was sold by George W. Clark's assignee to Tilden, April 18, 1870. It was not the mortgage debt that was sold, but the mortgaged premises, — that is, "all the right, title, and interest" of George W. Clark in the mortgaged real estate, "with the appurtenances thereto belonging, and which may be held by attachment or levy on execution." The purchaser, Tilden, took by the sale a title subject to the mortgage; and the interest which George W. Clark had in the mortgaged premises, as mortgagee under the will, passed to and is now vested in his assignee. It is obvious that these plaintiffs must be entitled to foreclose the mortgages against Tilden, unless he pays the amount of the mortgage debt, or, at least, that portion of it to which they are entitled according to their several interests.

My conclusion is that it was the intention of Samuel H. Clark to give to his son George W. and wife, and their children, the property represented by the mortgaged property, and that the debt secured by the mortgages passed. When the will was proved, the equity of redemption was in George W. A life estate in the mortgage interest was in him and his wife, remainder in their children, — two thirds in Charles H. and one third in Clara. The statute of 1860, in relation to married women, practically abolished tenancies by entirety between husband and wife; and the legal unity of husband and wife, as respects the holding of property and making of contracts by the wife, was obliterated. Clough v. Russell, 55 N.H. 279. Clark and wife were therefore tenants in common, and not tenants by entirety of the mortgage debt. The law, as held in Wentworth v. Remick, 47 N.H. 226, as to tenancy by entirety, does not apply. When Charles H. Clark, one of the remainder-men, died, his estate passed to his father. George W. Clark then held, — (1) The equity of redemption in the mortgaged premises; (2) a life estate, as tenant in common with his wife in the mortgage interest; and (3) two thirds of the remainder of the mortgage interest, at the time when the assignee's deed was given.

The assignee ought to be made a party to the bill, and that being done, I see no reason why the demurrer should not be overruled. It cannot be difficult to draw a decree that will protect the rights of all the parties interested, notwithstanding the complications in which the title is involved.