Coleman v. Whitney

[126] The opinion of the court was delivered by Munson, J. In 1853, the oratrix, while living with her husband, Martin ![. Benedict, at Stockholm, N. Y., was taken sick and wrote to her brother, Eliphalet Coleman, who lived in Williamstown in this State, requesting him to come and help her. Coleman thereupon went to see the oratrix, and during his visit an arrangement was made as to the oratrix’s future residence and support. The oratrix and her husband agreed to thereafter live apart; the husband gave Coleman four hundred dollars, and Coleman executed to the husband a bond and mortgage, conditioned as set forth in the statement of facts. Coleman then took the oratrix to his home in Williamstown, where she after-wards lived, except as hereinafter stated. Coleman died in 1881, leaving no provision for her maintenance. The oratrix is now without means and in need of support, and brings this bill to obtain a maintenance from the mortgaged premises. The master reports the condition in the bond, which was not produced, to be as recited in the mortgage. From this it appears that the mortgagor agreed to take the oratrix to his home, and to provide for, support and maintain her during her natural life, separate from and without expense to the husband, and to indemnify and save harmless the husband from any charges on her account. It is claimed that this is simply an obligation to indemnify the husband, and that the wife takes no benefit under it. We do not so construe the instrument. We think the obligation assumed by Coleman included the support of the wife during her life, and was not limited to the mere indemnity of the husband. He was not at liberty to leave her in destitution on the chance that her impoverished condition might not result in expense to the husband, but was to give her such necessary support as it would otherwise have been the duty of the husband to provide. His undertaking was not merely to protect the husband from loss. He undertook to support the wife, and to so fulfill that obligation as to save the husband harmless. The consideration moved from the husband for the benefit of his wife as well as for his own security.. The mortgage taken by him [127] secures a provision directly beneficial to the oratrix. She can. enforce that provision, although not a party to the instrument. In 1854, the mortgage being then on record, Coleman conveyed the premises by warranty deed to one Grlysson; and through subsequent conveyances, mostly with covenants of warranty, the title has come to the defendant Electa Whitney. No recital of the mortgage was embraced in these conveyances. The successive owners have occupied the premises under their deeds, and have in no way recognized the right of the oratrix. The oratrix made no claim upon the premises prior to Coleman’s death. Eor several years after the oratrix went to live with Coleman she was able to work and was allowed wages for her services: A settlement of some kind was had between them in 1864, in which Coleman paid the oratrix some money and gave her his note for eight hundred dollars. The amount Coleman received from Benedict was included in this settlement. After this, Coleman made no payments to the oratrix except upon the note. The ■oratrix, however, still continued to live with him. But the report indicates that at some subsequent period she was living elsewhere. It is stated that after leaving the farm on which they had lived the oratrix supported herself from the payments made on the note. This means of support was mot exhausted at the time of Coleman’s death. Nothing appears from which it can be determined when any payment upon the note was made, nor when the oratrix ceased to live with her brother. The defendants insist that the oratrix is barred from asserting ■her claim. They assume that the right to future support is lost by the mere failure to receive support during the period of limitation ; and contend that the oratrix received nothing prior to 1864 except compensation for her services, and nothing after that time except'payments upon the note, and that the note represented only her earnings and the money received from Benedict. In maintaining this view no account is taken of the inference which may properly be drawn from the facts reported, that while living with Coleman subsequent to the settlement the [128] oratrix was receiving a part of her support as a member of his family. But the view of the court upon the question of limitation is such that it will not be necessary to have further facts as to the support of the oratrix ascertained, nor to consider what effect should be given to the payments made upon the note, nor the effect of a performance of the condition of the mortgage by Coleman upon the rights of his grantees. We do not think the right to enforce an obligation for a life support is barred by the mere neglect for any length of time-to take the benefit of the provision. A mortgage to secure support during life is similar to one conditioned to secure the delivery of articles within a certain extended period at such times as they may be called for. This mortgage is security that the oratrix shall have her support when required, and the lapse of fifteen years without receiving support, simply because she did not. ask it, would be no bar. She was not obliged to sit in idleness- and take her support when able to earn it, in order to save her right to support when sickness or failing strength should make it necessary. We think there was no breach of the condition of this mortgage until the application for support and the failure* to furnish it, subsequent to Coleman’s death. It is urged that the oratrix should be denied relief because of her neglect to assert her right until after Coleman’s estate was substantially settled. It does not appear from anything disclosed in regard to the settlement of Coleman’s estate or the disposition of his property, that the defendants have lost their remedy upon his warranty. It does appear that before Coleman’s death the defendant Electa, who now has the title, and who is the wife of the defendant Ralph, was told by the oratrix of her claim upon this land. The oratrix cannot be denied relief on the ground of laches. It remains to consider what effect shall be given to the settlement of 1864. The oratrix had shortly before obtained a. divorce from her husband without alimony, and he had no further interest in the question of her support. The master reports that at the time the settlement was made nothing was said about [129] the future support of the oratrix or the mortgage given to secure it, and says further that it did not fully appear just what was settled. There is no finding that the settlement was in discharge -of the oratrix’s claim to future, support. It does not necessarily follow from the fact that the four hundred dollars was included in the settlement, under the circumstances reported, that the ■oratrix accepted the note in satisfaction of her claim. Before a ■final disposition of the case it should clearly appear whether it was understood that by this settlement the oratrix released her •claim for further support, and if not, whether it was understood that she was to discharge her security upon the land. The statements of the bill are sufficient to entitle the oratrix to a foreclosure, and she should have leave to so amend her prayer as to ask for that specific relief. Decree reversed and cause remanded with mandate. Ross, J. dissents.