Hastings v. Stevens

Woods, J. Mills, at his decease, was seized of an equity of redemption in the land in question. It must now be regarded, after the numerous decisions determining the point, both in this State and elsewhere, that a widow is dowable, in such an estate, against all persons except the mortgagee and such as may claim under him. Cass v. Martin, 6 N. H. Rep. 25; Rossiter v. Cossit, 15 N. H. Rep. 38, and cases cited; Barker v. Parker, 17 Mass. Rep. 504; Snow v. Stevens, 15 Mass. Rep. 278; Bolton v. Bullard, 13 Mass. Rep. 227. And it is equally well settled that, as against the mortgagee, she cannot be endowed, except upon payment of the entire mortgage. [572] And if she would be endowed as against one who, having an interest to redeem, has, in fact, redeemed, she will not be entitled except by payment of a contribution of her fair proportion of the incumbrance. Cass v. Martin, 6 N. H. Rep. 25; Robinson v. Leavitt, 7 N. H. Rep. 104, and cases cited *, Rossiter v. Cossit, before cited. And it is also well settled, in this State, that where the widow is dowable only in an equity of redemption, if the administrator of the estate shall, with the assets arising out of the estate, pay off and discharge the mortgage incumbering it, it will operate to let in the widow upon her dower, without redemption or contribution on her part. Bullard v. Bowers, 10 N. H. Rep. 500; Rossiter v. Cossit and cases cited there. Do the facts in the present case show a payment and discharge of the mortgage to Cole and Huntington ? In form, as shown by the receipt on the back of the mortgage, the transaction was a payment, by the administrator of Mills, the mortgager, to Huntington, one of the mortgagees, and the mortgage was discharged. A receipt to that effect was made and signed by the mortgagee upon the back of the mortgage. And, as we understand from the facts reported in the case, the full amount of the mortgage was, in fact, paid to the mortgagees from the avails of the sales made of the property of the deceased, and the assets generally in the hands of the administrator belonging to the estate. Besides, as tending to show that it was, doubtless, the purpose of the administrator to pay and cause the mortgage to be discharged, it may be observed that he assumed at the sale, and upon the face of the deed given to the tenant, to convey to him the estate, free from all claims of persons claiming from Mills or his administrator, and warranted the title against all such claims. And it is clear that the mortgage was a claim of the description contemplated by the terms of the warranty. The administrator had no interest in the estate to be upheld or protected by continuing the mortgage in force. He} [573] at most, had the duty to perform, in his discretion, to sell the equity, or to pay off the ineumbrance and redeem the estate, as might be most advantageous to those interested in it. Upon a full view of the case, he elected to sell the entire estate as if unincumbered, and to pay off the mortgage, and if it was not judicious, but was injurious to the interests of those concerned in the estate, either as heirs or creditors, he would himself be answerable, upon the settlement of his administrator’s account, for the loss sustained by the course adopted in the management and disposition made of the estate. Rossiter v. Cossit, ubi supra. It is contended, in the present case, that the declaration of the administrator, at the sale, that he had paid a part of the debt to Caleb Huntington, and that he would “ pay,” “ lift,” or “ raise ” the mortgage for the purchaser, in connection with the subsequent payment and discharge, constituted an equitable transfer of the mortgage to the tenant. It is true, that the form of the transaction is not material; the effect is to be construed according to the intention of the parties and the substantial justice of the case. Where the money is paid on a mortgage, by a party interested in the estate and entitled to redeem, it will operate as a discharge, or as an assignment of the mortgage, substituting him who pays in the place of the mortgagee, as may best promote the purposes of justice and the just interests of the parties. Robinson v. Leavitt, before cited. But, we think, the declaration of the administrator, at the sale, cannot be construed as meaning more than that he would cause the mortgage to be paid off and discharged. He had already paid a part, and that he would pay the balance, was the effect of his engagement. He did not contract to purchase the mortgage, and transfer it to the tenant. That would not be a fair construction of his language. It was not in the line of his duty to do this; it was his duty to redeem from the mortgage or else to sell the equity. The former he elected to do, and must be understood to have [574] paid with a view to a proper discharge of his duty in this respect. Besides, he paid out of the assets belonging to the estate, and the estate itself having no interest, and the administrator in behalf it having no right to keep it on foot, the payment and discharge are not to have that effect. The claims secured by the mortgage were allowed against Mills’ estate, and any arrangement made with the view of assigning the mortgage to the tenant, and having that effect, would simply change the creditor, and leave the indebtedness of the estate, after disposing of its funds, as before. The tenant would, in that ease, become the holder of the mortgage, and, of 'course, of the mortgage debt, with the right to keep it on foot, and in force. Such could not be the intention of the administrator, who, of course, was credited with the amount, as paid in discharge of the mortgage, and, upon the settlement, debited with the amount of the assets which came to his hands, of which the amount realized upon the sale of the land in question constituted a part. The administrator could not properly act as the agent of the tenant in purchasing the mortgage with thefunds of theestate, which he held as the agent o.f all interested, and assigning it to him. He held the funds for the payment and discharge of the just debts against the estate, in the first place, and any remainder that might be found, it was bis duty to distribute to the heirs. He could not, with the funds of the estate, pay off a debt against the estate and then treat the debt as unpaid, and as subsisting in another as the creditor. No principle of law or equity, it is believed, would be found broad enough to embrace and justify such a proceeding. And we are not to infer that it was the fair intention and purpose of the administrator to enter into such an arrangement, by the language used at the sale. He was to “ pay,” “lift,” or “ raise ” the mortgage for the benefit of the tenant. It was, then, plainly a payment that was intended j and it was manifestly favorable to the interests of the defendant that a mortgage resting upon the estate should be paid or [575] lifted, and, consequently, discharged. On the whole, we are of the opinion that the ruling of the court below was correct, and that judgment should be rendered upon the verdict for the plaintiffs, and for such sum in damages as shall be found justly due by an auditor, according to the provisions of the case. Judgment for the plaintiff.