
    Harvey Burnett, Administrator, versus Marshall Pratt et al.
    
    
      Oct. 5th
    
    A mortgage given to two persons to secure their several demands, is several and not joint; each has a right to enforce his claim under the mortgage, in a form adapted to his case ; and of course, the surviving mortgagee cannot maintain an action on the mortgage to enforce payment of the debt due to the deceased mortgagee.
    This was an action on a mortgage, brought by the plaintiff as administrator of the estate of Polly Pratt, deceased, to recover possession of the mortgaged premises. The mortgage was dated the 3d of January, 1814, and was given by Nahum Pratt, deceased, father of the defendants, to Esther, Millisent, Rebecca and Polly Pratt, to secure four notes given by Nahum, one to each of the mortgagees.
    The demandant’s counsel stated, that the mortgagees were all dead ; that Polly Pratt survived the others; that all the notes had been paid, except the one given to Rebecca Pratt; and that this action was brought for the purpose of enforcing payment of that note.
    The defendants objected, that upon this statement the action could not be maintained in the name of the administrator of Polly Pratt; and for the purpose of settling that question, the chief justice ruled that the action was wrongly brought.
    
      Newton and Conant, for the plaintiff,
    contended that the mortgage created a joint tenancy in all the mortgagees ; that they had a joint legal interest in the remedy ; and that the remedy survived to the last survivor and went over to her administrator. They cited Slingsby’s case, 5 Coke, 19 ; Anderson v. Martindale, 1 East, 497 ; Eccleston v. Clipsham, 1 Wms’s Saund. 153, and notes ; 2 Dane’s Abr. 223, c. 42, art. 1; 1 Chit. Pl. 11 ; Appleton v. Boyd, 7 Mass. R. 131 ; Revised Stat. c. 65, §11; Goodwin v. Richardson, 11 Mass. R. 469 ; St. 1788, c. 51, § 1 ; Revised Stat. c. 107, § 7. All the mortgagees may be regarded as trustees for each. Crane v. March, 4 Pick. 131 ; St. 1783, c. 37, § 3; Revised Stat. c. 59, § 30.
    
      Merrick and Washburn, for the defendant,
    cited St. 1785, c. 62, § 4 ; Donnels v. Edwards & Trs. 2 Pick. 617 ; Rehoboth v. Hunt, 1 Pick. 224 ; Revised Stat. c. 65, § 12.
   Morton J.

afterward drew up the opinion of the Court. A covenant with two or more persons constitutes a joint obligation ; and a conveyance in fee or in mortgage to several, at common law, creates a joint tenancy. But covenants are to be construed with reference to the subject matter upon which they are to operate, and where the interests of the covenantees are several, the covenant, though in form joint, shall be construed to be several; and each of the covenantees may maintain his separate action. 1 Chit. Pl. 11 ; Bull. N. P. 157 ; 1 Wms’s Saund. 154, note 1 ; Windham’s case, 5 Coke, 8 ; Slingsby’s case, 5 Coke, 19 ; Shaw v. Sherwood, Cro. Eliz. 729 ; Wotton v. Cooke, Dyer, 337 b ; Wilkinson v. Lloyd, 2 Mod. 82 ; Tippet v. Hawkey, 3 Mod. 263 ; Enys v. Donnithorne, 2 Burr. 1190. And in conveyancing, our statutes have essentially changed the common law. By their provisions a conveyance to several always creates a tenancy in common, unless the deed of conveyance expressly provides for a joint tenancy. St. 1785, c. 62, § 4 ; Revised Stat. c. 59, § 10, 11. Even the common law now favors tenancies in common ; Haws v. Haws, 1 Ves. sen. 13 ; Rigden v. Vallier, 2 Ves. sen. 258 ; and the policy of our legislation is decidedly adverse to joint tenancies. The doctrine of survivorship is not in accordance with the genius of our institutions. See Miller v. Miller, 16 Mass. R. 59.

Every written agreement should be construed with reference to the nature of the transaction between the parties and to the objects which they appear to have in view, A too strict adherence to the literal and grammatical construction of the words, often subverts the intention of the parties. Qui hceret in litera heeret in cortice. If a mortgage be given to secure a joint debt, it shall be so construed as to create a joint estate, notwithstanding the provisions of our statute. As the debt would survive, so the lien upon the estate should also survive, otherwise the security might be inadequate, and the object of the parties defeated. Appleton v. Boyd, 7 Mass. R. 131. But if a mortgage be given to two or more persons to secure their several debts, the obvious purpose of the parties must be, to give to each, security for his particular debt. The mortgage therefore should, according to the meaning of the parties and pursuant to the provisions of our statute, be construed to C'eate a tenancy in common. Mr. Dane says, “ if two equally lend money on a mortgage, though made to them jointly,” they will be tenants in common. 2 Dane’s Abr. 226, § 2 And in Rigden v. Vallier, 2 Ves. sen. 258, Lord Hardwicke says, “ this court has determined, that if two men jointly and equally advance a sum of money on a mortgage, and take that security to them and their heirs, without any words equally to be divided between them, there shall be no survivorship ; and so if they were to foreclose the mortgage, the estate should be divided between them, because their intent is presumed to be so.” Even where a joint debt is secured by mortgage, this Court have held, that after foreclosure, the mortgagees become tenants in common. Goodwin v. Richardson, 11 Mass. R. 469. See Deloney v. Hutcheson, 2 Randolph, 183 ; Randall v. Phillips, 3 Mason, 378 ; and Edwards v. Fashion, 1 Eq. Cas. Abr. 292, pl. 9.

On the whole, we think it is very clear and well settled, that a mortgage given to two or more persons, to secure their several debts, is several and not joint ; that each mortgagee has a right to enforce his claim under the mortgage, in a form adapted to the case, and of course, that the doctrine of survivorship does not apply. If the debts secured are equal in amount, the mortgagees will have an equal interest in the mortgaged estate, and in case of foreclosure will hold it in equal proportions. But if the debts are unequal, the purparties of the tenants will be in exact proportion to the amounts of their respective debts. Donnels v. Edwards & Trs. 2 Pick. 617 ; Powell on Mortg. (Rand’s ed.) 670, 671, 672.

As the plaintiff claims by right of survivorship, the action cannot be maintained in his name, as administrator to the survivor.

Plaintiff nonsuit.  