Daniels v. Eisenlord

Manning J.: The mortgagor agreed -to support, maintain and provide for his mother, the mortgagee, during the term of her natural life, and was to furnish her with proper and necessary board, wearing apparel, meat, food, and medical [457] attendance, and pay all funeral charges at her death. There is no evidence the mortgagor in his life time, or his heirs after his death, refused to do all that the condition of the mortgage called for; or of any demand made on them, or either of them, by the mortgagee, or any one on her behalf, for her support. The evidence shows she lived with the mortgagor about eleven weeks, and in the families of Daniels, Yan Aiken, and Parmelee, the rest of the time — mostly in that of Daniels — at the request of the mortgagor. Whatever claim they severally had for boarding and taking care of her, was against the mortgagor, and not against her personally. The mortgage was for her benefit, and not for the benefit of those who might provide her with board and lodging at the request, and on the procurement, of the mortgagor. Daniels’ claim was presented to the commissioners on the estate of the mortgagor, for allowance. We are all clearly of the opinion no breach of the condition of the mortgage is proven, and that the Circuit Court did right in dismissing the bill, with costs. Where the bill is not dismissed by complainant, or for want of prosecution, and no special provision is made by statute for costs, they are to be paid by such party as the Court shall direct.— Comp. L. §§ 5595, 5596. We think the Court fully warranted by the circumstances of the case in giving costs against the administratrix. The decree is affirmed, with costs. The other Justices concurred.