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Proctor v. Frost, 89 N.H. 304, 197 A. 813

Facts

George B. Proctor filed a suit to foreclose a mortgage executed by Arthur H. and Grace C. Frost on property owned by Grace in Wakefield, New Hampshire. The mortgage was created on December 25, 1931, to secure a debt of $2,600 owed by Mr. Frost to Proctor's firm. The court found that under Massachusetts law, a wife could act as surety for her husband, but ruled that New Hampshire law applied, which deemed the mortgage invalid against Mrs. Frost's estate.

The mortgage in question was executed December 25, 1931, “to secure or discharge Mr. Frost's debt” to a firm of which the plaintiff was a member, amounting to $2,600.

Issue

The main legal issue was whether the mortgage executed by Grace C. Frost was valid under New Hampshire law, despite being executed in Massachusetts where such contracts were permissible.

The validity of the mortgage should be determined by the laws of New Hampshire, and that under the local statute, Public Laws c. 288, § 2, the mortgage was not binding upon Mrs. Frost or her representatives.

Rule

The court applied the rule that the validity of a mortgage is determined by the law of the situs of the land, which in this case was New Hampshire.

The validity of a mortgage is determined by the law of the situs of the land.

Analysis

The court analyzed the statute under New Hampshire law, which stated that contracts or conveyances by a married woman as surety for her husband are not binding. However, the court noted that this statute did not explicitly declare such contracts void, and it had not been previously determined how this applied to mortgages executed in another jurisdiction. The court concluded that since Mrs. Frost had the capacity to execute the mortgage under Massachusetts law, the dismissal of the plaintiff's bill was erroneous.

The language in question appears to have been first construed in 1880, in the case of Buss v. Woodward, 60 N.H. 58. It was there said by Doe, C. J.: “This chapter is entitled ‘An act to remove the disabilities of married women’; but, so far as it applies to this case, it is a disabling act, imposing a new protective incapacity.”

Conclusion

The court sustained the plaintiff's exception, reversing the dismissal of the bill to foreclose the mortgage, thereby affirming the validity of the mortgage under Massachusetts law.

Exceptions sustained.

Who won?

George B. Proctor prevailed in the case because the court found that the mortgage was valid under Massachusetts law, which allowed Mrs. Frost to act as surety for her husband.

The plaintiff does not seriously question the soundness of the rule that “the validity of a mortgage is determined by the law of the situs of the land.”

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