Colby v. Dearborn

59 N.H. 326

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1879
• Status: Published

Opinion

Clark, J.

Both parties claim title to the demanded premises under Kimball C. Prescott. The plaintiff’s title is derived from a levy founded on an attachment made June 24,1873. The defendant's are in possession, claiming title under a mortgage executed by Prescott, February 14,1873, and recorded February 20,1873, more than four months prior to the date of the plaintiff’s attachment; and therefore if the mortgage is valid, the defendants are in possession under a title prior to the plaintiffs. The plaintiff contends that the mortgage is void for uncertainty in the description of the note secured by it, the amount of the note not being stated in the condition of the mortgage. The consideration of the mortgage is $400, and the condition is the payment of a note of even date with the mortgage, payable in four months from date with interest. The court received parol evidence showing that the note intended to be secured by the mortgage was a note for $400, bearing the same date as the mortgage, and payable in four months from date with interest. This evidence was rightfully received. Benton v. Sumner, 57 N. H. 117; Cushman v. Luther, 53 N. H. 563; Bank v. Roberts, 38 N. H. 23; Melvin v. Fellows, 33 N. H. 401; Boody v. Davis, 20 N. H. 140. The mortgage being valid, there must be

Judgment for the defendants.

Bingham, J., did not sit: the others concurred.