Hamilton v. Elliot

4 N.H. 182

Opinion

Richardson, C. J.

This is a very plain case. In 1815, Samuel Hamilton and Benjamin Bemiss, junior, having all the title to the demanded premises under Benjamin Bemiss, senior, the mortgagor, which this demandant now has, as their assignee, brought a writ of entry against Elliot and Appleton who then had all the title under the mortgagee which this tenant now has, and Elliot and Appleton disclaimed. The contest was then what it now is, if any contest could exist in the case, a contest between the assignees of the mortgagor and the assignees of the mortagee. It is most unquestionable that this tenant cannot now set up any title under the mortagee against his disclaimer. Stearns on Real Actions, 222.

But it is said the agreement of this demandant to purchase all the right of Elliot and Appleton, sets the estop-pel at large. But the law is not so. The rule is, that where the deed refers to a generality, the party may aver that the matter to which the deed refers does not exist. Thus Where the condition of an obligation was to pay all legacies which J. S. had devised by his will, the obligor is not estopped to say that J. S. gave no legacy by his will. 3 N. H. Rep. 209; Moor 420. And we are of opinion that the agreement of this demandant to purchase all the right of Elliot and Appleton cannot estoppe him tó say that they had no right, and there must be

Judgment for the demandant.