| Superior Court of New Hampshire | Jul 15, 1850
The case shows that the defendant made a bargain with Cutting for the purchase of the land at the price of thirty dollars, and entered under that bargain; that he paid part of the purchase-money to Cutting, in May, 1841, and on an arrangement made by him with Cutting and Kellogg, paid the residue of the price to Kellogg, on his verbal undertaking to convey the land directly to the defendant. Though not distinctly found by the case, it may be fairly inferred from the other fact, that Cutting paid to Kellogg the money he had received of Pike, as the agreement of Kellogg to convey was arranged by and among the three, on Pike’s paying the balance
Kellogg’s contract to convey, made on the 5th of June, is no more than his previous verbal agreement reduced into writing, and was made on the consideration that Pike had fully paid for the land, according to his agreement with Cutting, and to the satisfaction of Kellogg. And the objection to the written agreement, that it was without consideration, is not sustained by the facts of the case. At the time, therefore, when Bix & Cummings made their levy, the title to the land stood thus: The defendant had entered into the land under a verbal contract to purchase, had moved on a house, and resided there and cultivated the land for two or three years, had fully paid the agreed price, and taken the written agreement of Kellogg to convey on demand. This made the defendant the equitable owner of the land. A court of equity w'ould have decreed specific performance of Kellogg’s written agreement to convey. But he did not need the aid of a decree in equity to protect himself against any claim that Kellogg might set up at law. He had fully paid for the land, and was in possession under Kellogg’s written agreement to convey on demand, and this equitable interest might be set up as a complete defence against Kellogg in a suit at law to recover the land. Hadduck v. Wilmarth; Scoby v. Blanchard, cited for the defendant.
And he might set up the same defence against a purchaser or creditor, who had notice of his equitable estate. Hadduck v. Wilmarth, supra. Nor can the objection prevail, that Pike omitted to take a deed for the purpose’of defeating his creditors. This was no injury to the creditors of Kellogg. They had no right to take the land of Pike for the payment of Kellogg’s debts. The defendant is not asking the aid of the Court to enforce performance of an agreement. The agreement, so far as is necessary for his defence against the claim of the demand-ants, is executed. He has paid for the land according to the agreement, and is in possession under it, and may stand on this possession against Kellogg, or any other party, who claims in Kellogg’s place with notice of his equitable interest. On the
Such being the opinion of the Court on this part of the case, we are not called on to decide the other points raised in argument. If, however, Pike’s possession of the land taken on the execution, were shown by evidence aliunde to have been marked by clear and distinct limits, there are authorities which lean strongly to the conclusion, that the description in the levy by reference to that possession would be sufficient. McConihe v. Sawyer, 12 N. H. Rep. 397; Gilman v. Thompson, 11 Vt. 643" court="Vt." date_filed="1839-08-15" href="https://app.midpage.ai/document/gilman-v-thompson-6572258?utm_source=webapp" opinion_id="6572258">11 Verm. Rep. 643; Rollins v. Mooers, 25 Maine Rep. 193; Bates v. Willard, 10 Met. Rep. 62.
The other objection to the levy, that the house on the land was excepted, and the land attempted to be taken without the house, would seem- to be well founded, unless the house were severed in some way from the land, and made the personal pro-, perty of some person beside the debtor. If the house were annexed to the land and parcel of the real estate, the levy could not divide it from the land, and give the creditor the land without the house. Ry the bargain between Cutting and Pike, the house would belong to Cutting, and could not be divided from the land. But that bargain might not be binding on a creditor of Pike. If the house was lawfully sold on execution against Pike for his debt, the purchaser would hold it as personal property, and the land might then be taken for Kellogg’s debt, if it belonged to him, without the house. The burden of proof would lie on the party that claimed the land under a levy which excepted the house, to show that the house was personal property and did not belong to the debtor. If this were shown, the exception of the house in the levy, might well be considered as part of the description of the premises taken and appraised; and no sufficient reason is apparent for holding the levy void, though it should not state on its face that the house did not belong to the execution debtor, and was excepted on that account. Gault v. Hall, 26 Me. 561" court="Me." date_filed="1847-05-15" href="https://app.midpage.ai/document/gault-v-hall-4928180?utm_source=webapp" opinion_id="4928180">26 Maine Rep. 561. The verdict must be set aside and
A new trial granted.