Artemas Gotham is not a part, y to this suit, and of course his rights cannot be in any way affected by the judgment. As against Charles W. Gotham, the mortgage is valid, and conveys all his interest in the premises. Suppose he had undertaken to make an absolute conveyance of the premises: would it lie in his mouth, when his grantee undertook to go into possession under the deed, to object, on the ground that by such deed he had incapacitated himself to perform his personal obligation to his father? No reason is seen why the grantee in such a deed, or this mortgagee, might not enter into an arrangement with the father to be substituted for the son in the performance of the contract *Page 442 for support. But whether such arrangement were made or not, I do not see upon what ground the defendant can be heard to say that his deed incapacitates him to perform his contract with another person, and thus defeat the rights of this grantee under it. If the effect of the mortgage and a judgment for possession under it should be to revest the title in Artemas Gotham by reason on a breach of condition in his deed too the defendant, that is no concern of the defendant; it is only the legal consequence of his own act in executing the mortgage. If the plaintiff should arrange with Artemas to step into the position of the defendant with respect to the contract for support, then there would be no forfeiture, and the defendant would still have no legal ground of complaint, because this would be giving the mortgage no more than its true legal effect as between mortgagor and mortgagee. I think the brief statement is no answer to the plaintiff's case.
SMITH J. As between the plaintiff and Artemas Gotham, the plaintiff is not entitled to possession of the demanded premises during the lifetime of the latter. The contract between the defendant and his father was a personal one, founded in personal confidence, and is not assignable so as to entitle a third party to perform the contract which the defendant entered into without the assent of Artemas Gotham. Nor can the premises be taken by the creditors of the defendant without the consent of his father. Eastman v. Batchelder, 36 N.H. 141. In that case Batchelder and wife who held a mortgage against their son-in-law, one Tasker, with a condition for their support during life, were made parties defendant to a bill brought by a creditor of the mortgagor to foreclose the mortgage as against the legal representatives of Tasker, and offered to perform the contract of the mortgage to Batchelder and wife, which they refused to permit him to do.
But this suit is against Charles W. Gotham alone. Artemas Gotham is not a party to it, and is not here objecting to the right of the plaintiff to maintain this suit. The right of objecting is one personal to Artemas alone, and cannot avail this defendant. He is estopped by his deed to set up this defence. I can see no reason why this suit cannot be maintained as against him. The father not being a party to it, cannot be affected by the judgment which the plaintiff seeks to recover. The writ of possession would only issue against Charles W., and Artemas could not be disturbed in his possession, nor be prevented by virtue of it from receiving his support from Charles W., upon the premises, according to his contract. The judgment may be no more than an empty proceeding to the plaintiff, and practically he may not be able to obtain possession of the premises during the life of the father: on the other hand, it may be that upon the plaintiffs obtaining judgment and a writ of possession, Artemas may assent that he shall enter into the possession in place of Charles, and accept him as a substitute for his son. However this may be, I think the defendant is estopped to set up this defence, and that the brief statement must be rejected.
Brief statement rejected. *Page 443