| Superior Court of New Hampshire | Apr 15, 1817
The opinion of the court was delivered by
The question to be determined in this case is, whether Anna How can maintain covenant in her own right op the deed which she produces in court ? This question must be determined by the deed itself. No averment of matter out of the deed can alter the case. Every allegation in the declaration of matter not contained in the deed must be rejected as surplusage. 1 Salk. 197, Green vs. Horne.
The nature of the transaction is perfectly evident. Mark How, wishing to secure a maintenance for himself, his wife and infant son, had conveyed to Asa his farm. In consideration of the conveyance, Asa contracted with Mark to support him and his wife during Mark’s life, and the infant until he should arrive at twenty-one years of age : pay Mark’s debts then contracted, and the funeral expenses of him and his wife. But Anna How had not concurred in the conveyance of the farm. She still retained her right of dower.— Asa therefore contracted with Mark, that if his wife should survive him, and should choose “ a living ”'in lieu of dower, he would maintain her. To secure the performance of this contract, Asa re-conveys the land to Mark in mortgage. The whole transaction is most manifestly between Mark and Asa. Mark pays the consideration, the mortgage is given to him, the contract begins with the declaration, that it is “ the true intent and meaning of the grantee,” Mark, &c. Anna How is evidently a total stranger to the whole contract, and when Asa engages to furnish her certain articles, the contract must be considered to be with Mark, who paid the consideration. No authority, ancient or modern, can be found, which will warrant any other construction. 10 John. 47, Gardner vs. Gardner. The covenant then being not with her, but with another for her use, it is clear the action cannot be support» ed, and the nonsuit must stand. 1 Levintz 235, Offly vs. Ward. Judgment for the defendant.