Emerson v. Murray

4 N.H. 171

• Court: Superior Court of New Hampshire
• Decided: September 15, 1827
• Status: Published

Opinion

Richardson, C. J.

delivered the opinion of the court. An endorsement made upon an instrument before it is executed may be parcel of the obligation. It was very anciently so decided, in the case of Brooke v. Smith, Moor 670, the action was debt upon an obligation the condition of which was to save certain lands harmless from all in-cumbrances made by the obligor, and upon the bach there was a memorandum written, that the condition should not extend to an extent of a statute acknowledged by the obli-gor to a certain person. And because the extent was prosecuted, the obligee brought debt against the executor of the obligor, who’ pleaded the condition and the memorandum ; and the question was, whether the memorandum was parcel of the condition added as an exception ? The court held the memorandum to be parcel of the condition, because it was “ an explanation in writing of the intent of the parties written before the sealing of the obligation.”

The same principle has been often recognized in more modern times. 6 D. & E. 737, Steadman v. Purchase; 8 D. & E. 483, Burgh v. Preston; 1 Starkie’s N. P. R. 162, Lyburn v. Warrington; 14 East, 568, Weeks v. Maillardet; 6 Mod. 237, Cook v. Remington; 4 Mass. Rep. 245, Jones v. Fales.

But we are of opinion that the endorsement in this case, which is found upon the deed, cannot be considered as parcel of the deed until it is shown affirmatively to have been upon the instrument when executed. As this was not shewn at the trial, the deed must be considered as a conveyance of the land absolutely, and the demandant cannot, as executor, maintain this action.

Judgment on the nonsuit.