As against Hazelton or one claiming under him, a homestead cannot be assigned to the plaintiff until he or some one in his behalf has satisfied the mortgage debts. Fellows v. Dow, 58 N.H. 21; Pollard v. Noyes,60 N.H. 184. There is no evidence tending to show that the defendant intended his payment of the mortgage debts should enure to the plaintiff's benefit. The plaintiff is not a party to the deed or to the transaction which it completed. The language of the deed has no relation to him or to his rights. Construed, as it must be, in view of the situation of the parties and the nature of the transaction, it shows a purpose to discharge the mortgages so far, and only so far, as they were an incumbrance on the defendant's title to the land. The plaintiff stands in no better position than he would if Hazelton had executed, and the defendant had accepted and put on record, a formal discharge of the mortgages. *Page 46 Heath v. West, 26 N.H. 191; Wilson v. Kimball, 27 N.H. 300; Stantons v. Thompson, 49 N.H. 272; Bell v. Woodward, 34 N.H. 90; Hammond v. Barker,61 N.H. 53.
Exception overruled.
SMITH, J., did not sit: the others concurred.