Murray v. Emmons

Superior Court of New Hampshire

Murray v. Emmons

19 N.H. 483

DecidedJuly 15, 1849

StatusPublished

This text of 19 N.H. 483 (Murray v. Emmons) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Murray v. Emmons, 19 N.H. 483 (N.H. Super. Ct. 1849).

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Opinion

Woods, J.

The defendant, Emmons, derives his title to the land in controversy from two several executions, extended upon distinct parts of it, the one in his own favor, and the other in favor of parties whose acquisition under the levy has been legally conveyed to him. Both executions were issued upon judgments against the plaintiff. Murray, while in possession of the land, claiming it as his own. He himself participated in one of the levies, by appointing an appraiser, and hired that part of the land set off upon the other, ftom the parties in whose favor it was made. The title of this plaintiff to the land, whatever it was, passed by these levies. Whether his title was what he pretended it was, or a mere naked and unauthorized possession, it is unnecessary for this defendant to show, for it lies not with the plaintiff to deny that it has wholly gone from him by force of those proceedings. Such, indeed, is the view which he has himself taken of his own case, in recognizing in the various forms which the case finds, the titles of those claim[486]*486ing under the levies, and especially in taking a lease of the premises of Susanna Kinsman.

The question, then, arises upon the validity of that lease. Of the title of Susanna Kinsman to the land, there seems to be no controversy. But her power to make a lease of it is wholly taken away by her coverture. There is no authority for maintaining that the lease, deed, or other contract of a married woman, has any validity at all. Unlike 'the act of an infant, which is voidable only at his election that of a feme covert is inoperative and void from the beginning, and requires only a plea of non est factum to annul it. 1 Black. Com. 444; Ela v. Card, 2 N. H. Rep. 175; Com. Dig. Baron & Feme Q.

The defendant has, therefore, a better right than the plaintiff to the possession of the land in dispute. The action cannot, upon the case presented, be maintained. The verdict must therefore be set aside, and a

New trial granted.

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Woods, J.

The defendant, Emmons, derives his title to the land in controversy from two several executions, extended upon distinct parts of it, the one in his own favor, and the other in favor of parties whose acquisition under the levy has been legally conveyed to him. Both executions were issued upon judgments against the plaintiff. Murray, while in possession of the land, claiming it as his own. He himself participated in one of the levies, by appointing an appraiser, and hired that part of the land set off upon the other, ftom the parties in whose favor it was made. The title of this plaintiff to the land, whatever it was, passed by these levies. Whether his title was what he pretended it was, or a mere naked and unauthorized possession, it is unnecessary for this defendant to show, for it lies not with the plaintiff to deny that it has wholly gone from him by force of those proceedings. Such, indeed, is the view which he has himself taken of his own case, in recognizing in the various forms which the case finds, the titles of those claim[486]*486ing under the levies, and especially in taking a lease of the premises of Susanna Kinsman.

The question, then, arises upon the validity of that lease. Of the title of Susanna Kinsman to the land, there seems to be no controversy. But her power to make a lease of it is wholly taken away by her coverture. There is no authority for maintaining that the lease, deed, or other contract of a married woman, has any validity at all. Unlike 'the act of an infant, which is voidable only at his election that of a feme covert is inoperative and void from the beginning, and requires only a plea of non est factum to annul it. 1 Black. Com. 444; Ela v. Card, 2 N. H. Rep. 175; Com. Dig. Baron & Feme Q.

The defendant has, therefore, a better right than the plaintiff to the possession of the land in dispute. The action cannot, upon the case presented, be maintained. The verdict must therefore be set aside, and a

New trial granted.

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Bluebook (online)

19 N.H. 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-emmons-nhsuperct-1849.

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