44 A. 703 | N.H. | 1896
April 3, 1890, the defendants conveyed to the plaintiff by warranty deed in common form the premises described in the writ. At that date the defendants had title to three Fourths only of the land described in the deed. The defendants' covenants of title, seizin, and right to convey were broken upon the execution of the deed, and the plaintiff's right of action was perfect upon its delivery. Morrison v. Underwood,
The controversy arises from the fact that although at the May term, 1890, in the action Eaton v. Clarence E. Hill, Hill was defaulted, judgment ordered, and execution taken against him, afterward at the following November term, upon motion the action was brought forward, and the execution having been returned and cancelled, the judgment was vacated, a new judgment rendered, and execution issued upon which the set-off under which Eaton claims title was duly made. The defendants' claim is that the lien of Eaton's attachment was lost by his failure to levy within thirty days from the entry of judgment in May, 1890. "Property attached shall be holden until the expiration of thirty days from the time of rendering a judgment in the action in favor of the plaintiff on which he can take execution." G. L., c. 224, s. 36; P. S., c. 220, s. 40. Nothing appears in the case tending to show that the judgment was not properly entered and intentionally taken by Eaton at the May term. If this were the case, it would seem to be clear that by force of the statute the lien of the attachment expired at the end of thirty days; and Eaton's title would not relate to the date of his attachment, but depends solely upon his levy, at the date of which Clarence Hill had no title because of his prior conveyance to the defendants. Haynes v. Thom,
The case finds that the defendants conveyed by warranty deed in common form, and no finding of fact is reported that sustains the claim of the defendants' counsel that Nancy M. Hill did not join in the covenants sued upon. The facts reported negative such claim, and no question of law arises thereon.
Case discharged.
CLARK, J., did not sit: the others concurred.