Marsh v. Rice

1 N.H. 167 | Superior Court of New Hampshire | 1818

Per curiam.

It is unnecessary in this case to determine the legal effect of Marsh’s assent to Rice’s purchase of the demanded premises ; nor need-we determine -whether this action could have been maintained, even if Whitcomb had satisfied the two mortgages with his own money, and pro-cored them to be discharged, and then conveyed the premises to Rice, because we are very well satisfied that Rice must be considered as the assignee of Harriman and Darling, and that as such he is entitled to retain possession until he shall receive the amount due upon the two mortgages, in the same manner as if the assignment had been made by Harriman and Darling directly to him. He purchased of them the mortgages, and paid them the consideration of the purchase. And although they released to Whitcomb, yet it was most manifestly only for the purpose of enabling him to convey to Rice. Whitcomb must, therefore, be considered merely as an instrument'and the release to him as such cannot enure to the benefit of the demandants⁽¹⁾ The tenant is clearly entitled to retain possession of the premises until the demand-ant shall have paid him the amount of the two mortgages, There must, therefore, be

Judgment on the verdict.

(1) 4 Mass. Rep. 506, Holbrook vs. Finney, 14 Mass. Rep. 351, Clark vs. Monroe.