The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by
Shepley, C. J.Clark Osgood appears to have been the owner of a farm and to have conveyed it to the tenant, receiving from him a contract to deliver yearly, for ten years, “ six tons of good English hay,” with a mortgage of the farm to secure its performance.
According to the agreed statement of facts, there has been no breach of the condition; for the mortgager was by virtue of a judgment, legally entered against him and the mortgagee, obliged to deliver part of the hay to another; and that duty he appears to have performed as perfectly as he could have done it.
By the provisions of the statute, chap. 125, <§> 2, the mortgagee may recover possession, before there has been any breach of the condition, “ when there is no agreement to the contrary, but in such case, if the debt be afterwards paid or the mortgage redeemed, the amount of the clear rents and profits from the time of the entry shall be accounted for and deducted from the amount due on the mortgage.” The agreement *190named in the statute may be one arising by implication out of the written instruments executed at the time and necessary to carry their designs into effect.
If the mortgager were desirous of paying immediately the amount due and secured by the mortgage, it is not perceived, that he could legally do so. The holder of the mortgage would not be obliged to receive the hay before the times appointed. There might not be any satisfactory mode of ascertaining the quality of the hay to be delivered in future years, or the cost of it to the mortgager. The provision, that it is “to be valued at twelve dollars per ton,” can only fix the price to be paid in case of neglect to perform. If the mortgager cannot redeem before the expiration of the time appointed, he must deliver the hay yearly, to prevent an entry for condition broken; and could not safely allow more than the amount to be delivered during the last three years, to remain undelivered, without being liable to incur a forfeiture of the estate. If the mortgagee or any irresponsible assignee might enter and receive the profits during the residue of the ten years, they might amount to a sum much larger than would be then due and secured by the mortgage, and they could not be deducted from the amount due upon the mortgage, according to the provisions of the statute; and if the persons receiving them should be unable to repay the balance, the loss would fall upon the mortgager.
Such results could not have been contemplated by the parties to the contract, or by the framers of the statute. To ascertain the intention of the parties, all the documents executed at the same time as parts of the same transaction may properly be considered together.
The contract does not in terms provide, that the hay to be delivered shall be part of that cut yearly upon the farm; but the provision, that it shall in quality be an average of that cut upon it, discloses the expectation of the parties. It is quite probable that neither the intentions of the parties, nor the provisions of the statute could be carried into effect in this case, if the mortgager should be deprived of the posses*191sion of the farm before condition broken. While there appears to be no obstacle to prevent all parties from obtaining their perfect rights by allowing their contracts to contain by implication an agreement, that the mortgager should retain possession, until there has been a breach of the condition. The cases cited by the counsel for the tenant fully authorize such an implication.
Demandants nonsuit