
    Sarah Wilder versus Benjamin Whittemore.
    Upon ■ mortgage deed, conditioned that the mortgagor shall maintain and support tira mortgagee during life, the mortgagee has a right to the support wherever he shall choose to reside, so that needless expense be not created to the mortgagor or his assigns. If the latter fails of performance, the mortgagee has a right to the possession of the mortgaged premises. But in an action for such possession, on the prayer of the tenant, judgment will be entered, conditioned for the payment of the arrears within two months. — Stat. 1785, c. 22.
    This was a writ of entry, in which the said Sarah counted upon a mortgage in fee of the demanded premises, lying in the town of Dana, made on the 11th of July, 1804, by one Aaron Haven to her husband, Manasseh Wilder, whom she had survived, and to herself, as joint-tenants, and upon a disseisin by the said Whittemore.
    
    The plea in bar set forth, on oyer granted, the deed under which the demandant claims; the condition of which was, that if the said 
      Aaron Haven, tne mortgagor, should maintain and support the demandant, and her said husband, during their respective lives, the deed should be void. The plea then alleges an assignment by Haven of the equity of redemption, and several other assignments, until it came to one Israel Houghton; and it avers that the said Haven, and the several assignees of the right of redemption, had supported the said Manasseh and Sarah until the assignment to Houghton ; and that he, the said Houghton, had always, to the day of the purchase of the writ in this case, offered to support the said Sarah, since the decease of her said husband, at his, the said Houghton’s house in Petersham; but that she had refused to accept the same.
    * To this plea the demandant demurred generally, and the tenant joined in demurrer.
    Newton, for the demandant,
    argued that here was a personal trust and confidence, reposed by Wilder and his wife in Haven and his personal representatives; and that it was a violation of that trust, to assign these aged persons over to the care of strangers. Such, he said, had always been the impression in this part of the country, where similar arrangements are frequently made.
    But, if the interest of the mortgagor be an assignable one, still his duty was to be performed upon the land mortgaged, and which had been previously conveyed to Haven, by the mortgagees, with a view to this contract. It was a gross abuse of the trust, to oblige this aged female to follow every assignment of the equity of redemption, and change her patron and place of residence as often as the interest or the caprice of strangers to her should dictate.
    
      Lincoln, for the tenant,
    said it would be monstrous that the mortgagee should have a right to the possession of the mortgaged premises, thus taking to herself the very fund from which she was to derive her support, and yet retain her claim for such support. The consequences of such a decision would be most injurious to a large class of our citizens, who have entered into contracts like that now before the Court. But at any rate, the only judgment that can be rendered in the action is the conditional one prescribed by the statute ;  and the plea, it is respectfully insisted, is a sufficient bar to that judgment.
    
      
      
        Stat. 1785, c. 22.
    
   By the Court.

It is clear that the plea in bar does not show a performance of the condition of the deed; for it is nowhere stipulated therein that the mortgagees shall be obliged to receive their support in the house of the mortgagor, or of any of his assignees On the contrary, wherever they choose to live, they have a right to be supported, according to this contract, so that they do not create needless expense to the mortgagor, or those holding under him.

The demandant has a right, therefore, to the possession of * the estate, unless the mortgagor will pray for the conditional judgment; in which case, an estimate may be made of the time during which she has been left without support, and judgment nisi, &c., may then be entered, 
      
       Vide Jackson vs. Florence, 16 Johns, 47.
     