On Exceptions from Nisi Prius, Rice, J., presiding.

Writ or Entry.

The demandant conveyed a farm, lot No. 45, to the tenant, who at the same time re-conveyed it in mortgage. Upon this mortgage the action is brought. The condition of the mortgage was, “ that if the said Farwell Webb, his heirs, execut,ors or administrators, shall support me and Betsey Norton, my wife, in our house on said lot, No. 45, if we choose, by furnishing us with food and clothing, medicine and medical aid in sufficient quantity and quality, according to our circumstances, and as our necessities may require, and that during our natural life, both in sickness and health, as we may need for our comfort — also provide and constantly keep for our use and benefit, a good and gentle horse, and convenient carriage, or otherwise provide them, whenever we, or either of us, as the case may be, shall wish to ride, either in visiting or for recreation, then this deed shall be void, otherwise remain in full force.”

It appeared in evidence, that demandant and wife lived in the family of tenant, on the farm described in said deed, for two years after it was given, when they left it, and had received no support since.

The tenant contended that he had the right, under the terms and conditions of the deed, to furnish the support contemplated, at' the house on said farm; and if he furnished support at that place, it was not optional with demandant to have his support there, or elsewhere, as he chose.

But the presiding Judge instructed the jury that it was originally optional with the demandant to have his support in said house on the farm, or elsewhere, as he might choose. That if the demandant had elected to have his support in said house, he would be bound to receive it there and could not afterwards revoke or alter it j but if the plaintiff had not so elected, the defendant would be bound to support the plaintiff and his wife elsewhere ; and that the burden of proof was on the defendant to show that the plaintiff had elected to take his support in said house, and that the acts of the plaintiff in going to live on the farm, in the house with the defendant, were legitimate evidence, tending to prove such election.

A verdict was returned for the demandant.

It is obvious, that a right, or power of choice, is given to the mortgagee, by the terms of the conditions, in regard to the place of his support, and it is equally obvious, that that right is not an unlimited one, and gives the mortgagee no right, except the right to “ choose” to have his support at a particular place.

It does not confer the right to choose to have his support at “ any place he might designate, but a right to have that support in our house, on said lot No. 45, if he choose.”

The contract on the part of the mortgager, binds him to the unconditional support of the mortgagee, and the agreement of mortgagee is equally unconditional to receive such suppoit, as specified.

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