The objection made by the defendants to the plaintiffs' mortgage is, that the incumbrance designed to be created is not stated with sufficient fulness and certainty. The cases of Bassett v. Bassett,10 N.H. 64, New Hampshire Bank v. Willard, 10 N.H. 210, and Boody v. Davis,20 N.H. 140, are the principal authorities on this point. In Bassett *Page 122 v. Basset and Bank v. Willard the condition of the mortgage was, to secure the payment of a bond. The condition of the bond was not set out in either case, but that was held no objection. In Bank v. Willard the condition of the bond was very similar to the condition in this mortgage, and it was necessary to show by parol what the particular notes were against which the plaintiff was to be indemnified.
It is true, the defendants suggest a different construction of a certain portion of the clause in the statute under consideration, and maintain that by the words "no estate shall be encumbered," is to be understood, the grantor shall not encumber his estate "unless the agreement," c. But whichever way it is taken, the particular words which we are called upon to construe are the same, and must receive the same construction. The question what would be a sufficiently definite statement of the claims intended to be secured would still be determined on the same principles, and governed by the same authorities.
It is further objected, that the terms of the condition of the mortgage, in the present case, are broad enough to include as well indemnity for future as for past advances. The same objection was made to the condition of the bond in Bank v. Willard, but it was held that the mortgage, though bad as far as future advances were concerned, was good for the rest.
On the whole, then, unless the cases cited are to be overruled, for which there seems to be no occasion, the evidence objected to was rightly received, and, according to the provisions in the case, the defendants must be defaulted and a commissioner appointed.
LADD, J. I think the evidence offered, to show what notes had been signed by the plaintiffs at the time the mortgage was executed, which came within the terms of the condition, was properly received, and the exception should be overruled. The thing to be performed by the mortgagor is distinctly stated in the deed, namely, to indemnify the mortgagees against loss, c., by reason of having signed and indorsed notes which were at that time in the bank of Newbury. The notes themselves were not particularly described; that is, their number, dates, and amount were not given. But the thing to be done was, nevertheless, stated; and if any creditor or other person had an interest or right to know the amount of the notes, when they came due, how much the mortgagees had been compelled to pay on them, the law provides ample means whereby they might gain such information. If there is any lack of definiteness or certainty in the condition in this particular, I think it is a case where the maxim, Id certum est quod certum reddi potest, applies. Besides, if this condition should be held void for uncertainty, I see no way to avoid the conclusion that the deed must take effect as an absolute conveyance. I do not think it possible to put upon the Gen. Stats., ch. 122, sec. 2, a construction that will nullify a deed executed with all the formalities required by law, because the parties intending to insert a condition, or defeasance, have *Page 123 failed to do so, and only inserted words which must be held to be of no effect by reason of their uncertainty.
Defendants to be defaulted, and a commissioner appointed.
Exceptions overruled.