Marston v. Osgood

38 A. 378, 69 N.H. 96

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1896
• Status: Published

Opinion

Carpenter, C. J.

The levying creditor’s conveyance of the-land with -warranty was competent and sufficient evidence of his acceptance of seizin.

The defendant was in equity entitled to a conveyance upon the performance of his part of the contract. He owned an interest in the land. P. S., c. 233, s. 19; Edgerly v. Sanborn, 6 N. H. 397, 399. Of this interest his possession of the premises was-constructive notice. Pritchard v. Brown, 4 N. H. 397; Cutting v. Pike, 21 N. H. 347. His equitable right to a conveyance was not affected by the levy. Under it the creditor took the legal estate, subject to the equitable obligation to convey the land to the defendant on his performance of the conditions of the bond. 1 Sto. Eq. Jur., ss. 784, 788.

But the defendant’s remedy for a denial of his right is in equity. A full performance of the conditions of the bond before the levy or attachment would, in the absence of fraud, afford him no defence to the present action. Ela v. Pennock, 38 N. H. 154.

Exceptions overruled.

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