Rice v. Smith

18 N.H. 369

• Court: Superior Court of New Hampshire
• Decided: December 15, 1846
• Status: Published

Opinion

Woods, J.

The act of July 3, 1822, which makes provision for the sale on execution of the debtor’s equity of redemption in real estate, authorizes the officer having the execution to make such sale at public action, and to make, execute, acknowledge and deliver to the highest bidder a good and sufficient deed of any estate so sold, in manner as in that chapter provided. It then makes effectual all deeds that may be executed in pursuance of the act, saving the debtor’s right to redeem the premises within a year from the execution of the deed.

The sixth section of the act requires the officer having the execution on which the equity has been sold, immediately to make, execute and deliver to the purchaser a deed in the form prescribed in the section. N. H. Laws, 105-6.

Nothing can be plainer than that this requisition of law has not been complied with; since the deed, instead of having been made to the purchasers, was made to one of them only. The officer had no estate in the land, and could convey none except in the execution of the power conferred by the statute, and that power he has not executed. He has not conveyed the land to the actual purchasers.

Cutter, of coui’se, conveyed nothing by his deed to Smith, and the notes were consequently without consideration.

An action could not be maintained by Cutter himself upon the notes, neither can the demandant, who would receive the proceeds, if recovered, as the mere trustee of Cuttei’, to account for upon a debt which Cutter owes the estate administered by the demandant. Williams v. Little, 11 N. H. Rep. 66.

The same objection that would bar the recovery upon the notes, must prevent his entry upon the land, which is but a collateral security for the payment of them.

Judgment for the tenant.