Whittemore v. Bean, 6 N.H. 47

Whittemore v. Bean

6 N.H. 47 | Superior Court of New Hampshire | 1832

By the court.

An unrecorded deed of land is valid against the grantor and against his heir. But if the grantor, or his heir, afterwards, for a valuable consideration, convoy the land to another purchaser, who has ho notice of the unrecorded deed, the last conveyance will prevail against the first- And the devisee of the grantor would stand on the same ground as his heir. If then, the land passed in this case, by the will of James Lowell,'the verdict must stand. 2 Pick. 184, Somes v. Brewer; 16 Mass. Rep 406, Trull v. Bigelow; 14 ditto, 296, Connecticut v. Bradish; 3 Pick. 149, M'Mechan v. Griffing.

But it is said, that nothing passed by the will of James Lowell, because he was not seized of the land.

It is now settled, in England, that after a man has been disseized, his right of entry is not ldevisable. 8 East, 552, Goodright v. Forrester; 1 Taunt. 578, S. C; Shep. T. 428, Com. Dig. “Devise,” M.

And the law seems to be the same in Massachusetts ; 10 Mass. Rep. 131, Poor v. Robinson; 17 ditto, 68, Brown v. Wood; 15 ditto, 113, Smithwick v. Jordan.

But in New York the law is otherwise ; 7 Cowen, 238, Jackson v. Varick. 1 Peters S. C. R. 571, Waring v. Jackson.

It is not necessary, in this case, that the question, *50whether, in this state, after a man has been disseized, and while the disseizor holds the land adversely, the disseizee’s right of entry into the land is devisable, should be settled. That question does not arise in this case. Here the testator was on the land when he made his will, and remained upon it until his death. There had been no disseizon. The rule, therefore, that a right of entry is not devisable, if it be law in this state, is not applicable to this case. That rule was established in ancient times, when there was a great jealousy of permitting rights to be transferred from one man to another, lest the poorer might be harrassed by rights transferred to more powerful persons. Whatever grounds might have existed, formerly, for such a jealousy, they seem to have ceased to exist in modern times. In this state, a right of entry, into land, will pass by deed, although the land be holden, at the time, adversely to the right of the grantor. And it would have been singular indeed, even if this testator had been disseized, anti the land holden adversely at the time he made his will, and at the time of Ms decease, if this petitioner could have gone and bought up the pretended right of entry which the heirs of Oliver Lowell had, against whom the land was held adversely at the time, and have maintained this petition, against, this respondent, on the ' ground that the land did not pass by the will of James Lowell, because he was not seized. But we shall not determine what would have been the law in such case. In this case we have no doubt that there must be

Judgment for the respondent.