Eaton v. George

2 N.H. 300 | Superior Court of New Hampshire | 1820

Richardson, C. J.,

delivered the opinion of the court.

There is no foundation for this action. Flanders, having George’s right in equity to redeem the land, paid to Eaton the amount due upon the mortgage, and took an assignment of it. Flanders thus became seized of the land absolutely in fee simple, and the mortgage was discharged. Andas Flanders, in redeeming the land, stood in George's place, the payment to Eaton by Flanders is as much a payment of the notes, as if it had been made by George himself; and the notes having been once paid, it is clear, that no action can be maintained upon them.

If Harris conveyed to Flanders the mere right to redeem the land, without any covenant against incumbrances, whatever price the representations of Harris may have induced Flanders to pay for the right to redeem, Flanders is without remedy, unless the representations of Harris were fraudulent. If George conveyed the land to Harris and Russell, with a covenant against incumbrances, he may be compelled by an action in their names to pay the amount of the incum-brance. But for aught that appears in this case, he may have conveyed nothing to Harris and Russell but the mere right to redeem ; in which case it would be most manifestly unjust to compel him to furnish those who had bought the naked right to redeem, with the money necessary to redeem the land.

We are, therefore, of opinion, that the verdict must be set aside, and a new trial be granted.