Clark v. Clark

• Decision Date: 13 August 1875
• Citation: 56 N.H. 105
• Parties: Clark v. Clark.
• Court: New Hampshire Supreme Court

56 N.H. 105

Clark v. Clark.

Supreme Court of New Hampshire

August 13, 1875

Devise of mortgaged premises---Construction of wills---Husband and wife---Tenancy by entirety---Bankruptcy.

G. W C. mortgaged certain real estate in 1854 to S. H. C. to secure certain notes. S. H. C. died in 1862, testate, never having been in possession of the mortgaged premises. By his will, dated in 1856, he devised to his son, the said G. W C., and to E. H. C., wife of G. W. C., all his interest in the mortgaged premises, "to have and to hold the same to them during their natural lives;"---remainder, two thirds to C. H. C., and one third to C. E. M., children of G W. C. and E. H. C. C. H. C. died, subsequent to the decease of S. H. C. and prior to 1870, under the age of 21 years, and without issue. January 3, 1870, G. W. C. filed his petition in bankruptcy, and was adjudged a bankrupt. His assignee under a decree of the bankruptcy court, sold and conveyed to one D. T. the equity of redemption in the mortgaged premises. E. H. C. and C. E. M. afterwards filed their bill in equity, against G. W. C. and D. T., to foreclose the mortgage. D. T. demurred to the bill. Held---(1) That, by the will of S. H. C., the debt secured by the mortgage passed to G. W. C. and E. H. C., and their children; (2) that, at the time of the probate of the will, the equity of redemption was in G. W. C.; that a life estate in the mortgage interest was in G. W. C. and E. H. C. as tenants in common, and not as tenants by entireties; that two thirds of the remainder of the mortgage interest was in C. H. C., and one third in C. E. M.; (3) that, on the death of C. H. C., his interest in two thirds of the remainder of the mortgage interest passed to his father, G. W. C., by inheritance; (4) that, upon the assignee in bankruptcy being made a party to the bill, the plaintiffs would be entitled to a decree of foreclosure; (5) that the statute of 1860, in relation to married women, destroyed the legal unity of husband and wife, as respects the holding of property and making of contracts by the wife; (6) that the doctrine of Wentworth v. Remick, 47 N.H. 226, as to tenancies by entirety, has become inoperative, by the passage of the act of 1860 in relation to married women. (7) When the owner of an equity of redemption becomes devisee, as tenant in common of an undivided interest in the mortgage debt, the two estates do not become united, so as to discharge any part of the mortgage debt

FROM GRAFTON CIRCUIT COURT

IN EQUITY. The bill is brought by Eliza H. Clark, of Enfield, in this county, and Clara E. Matthews, of St. Johnsbury, Vt., her daughter,

against George W. Clark, husband and father of the plaintiffs, and Daniel Tilden of Lebanon, in this county. The plaintiffs allege, that on November 11, 1854, the said George W. Clark executed a mortgage of certain real estate, situate in Enfield, conveyed to him by Lorenzo Day, to Samuel H. Clark, his father, to secure him for signing as surety for the said George W. a promissory note for $1,200, of even date with said mortgage, and payable to said Day, or order, April 1, 1855, with interest annually; also, that on June 6, 1856, the said George W. executed another mortgage, to said Samuel H., of said premises; also of a piece of land in Canaan, in said county; also of ten acres, bought of one Godfrey, lying on the opposite side of the road, to secure two promissory notes, one for $912, dated March 12, 1856, and the other for $200, dated May 20, 1856, and each signed and payable by said George W. to said Samuel H., or bearer, on demand, with interest annually; that the said Samuel H. paid the note for $1,200 to said Day; that he died March 10, 1862, testate; that at the time of his decease the full amount of the three notes above described was due to him; that by his last will and testament, dated November 20, 1856, which has been duly proved and allowed, the said George W. was appointed executor; that at the time of his decease the said George W. and Eliza H. Clark had two children, to wit, Charles H. Clark and Clara Clark (one of the plaintiffs); that said Charles H. Clark afterwards died between March 10, 1862, and January 3, 1870, under the age of twenty-one years, and leaving no issue. The first and second items in the will of the said Samuel H. read thus:

"First. I give and devise to my son, George W. Clark, and Eliza Clark, wife of the said George W. Clark, all my interest in the real estate of which I now hold a mortgage from my said son George W. Clark, situated in North Enfield, county and state aforesaid, it being the same real estate that my son George W. Clark bought of Lorenzo Day; also all my interest in the real estate of which I hold a mortgage from my son George W. Clark, situated in Canaan, in said county and state aforesaid, it being the same estate that my son George W. Clark bought of C. M. Dyer and S. R. Godfrey---to have and to hold the same to them during their natural lives, and at their decease said interest to be divided as follows: two thirds to remain to Charles H. Clark, and one third to Clara Clark, children of the said George W. Clark and Eliza Clark.

"Second. I give and bequeath to my daughter Sarah Orinda Hazen, wife of J. W. Hazen, the sum of three hundred dollars; also, all the rest and residue of my personal estate, after payment of my debts and legacies, I do give and bequeath unto my son George W. Clark and my daughter Sarah Orinda Hazen, to be equally divided between them; and I do hereby constitute and appoint my said son George W. Clark sole executor of this last will and testament: in witness whereof," &c.

The plaintiffs further allege, that the said George W. filed his petition in bankruptcy January 3, 1870, upon which he was afterwards duly adjudged a bankrupt, and James G. Ticknor was appointed his assignee;

that by virtue of a license or decree from the district court of the United States for the district of New Hampshire, dated March 21, 1870, authorizing him to sell at public auction the property of said bankrupt, he, on April 18, 1870, at public auction, in consideration of $1,033.13, sold and conveyed to said Daniel Tilden, his heirs and assigns, "all the right, title, and interest" of the said George W. Clark to the aforesaid described real estate, "with the appurtenances thereto belonging, and which may be held by attachment or levy on execution."

The plaintiffs further represent that the notes have not been paid nor the mortgages discharged, but they remain the same as they did at the decease of said Samuel H. Clark, and that in order to protect their interest as given by said will, said mortgages should be foreclosed; and they pray for a decree of foreclosure of said mortgages, and for a writ of possession of said premises, and for such other relief as may be just.

Tilden demurred to the bill, assigning the following causes:

1. The plaintiffs have not alleged any such title to, interest in, or possession of the lands and tenements named in said bill, as would entitle them to maintain this action against him, or any other action, whether legal or equitable.

2. The plaintiffs do not allege any acts done or claims made by him, which entitle them to the relief prayed for.

3. The bill is multifarious.

4. Charles H. Clark, named in the bill, is not made a party thereto.

5. The bill discloses no equity on the part of the plaintiffs.

6. The bill is in other respects uncertain, informal, and insufficient.

The questions arising upon the demurrer were reserved for the law term of the late supreme judicial court.

Murray, for the plaintiffs. Carpenter (with whom was H. Bingham), for Tilden

SMITH J

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 nat-

ural 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. It 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...