Wilson v. Webster

6 N.H. 419 | Superior Court of New Hampshire | 1833

EichardsoN, C. J.

delivered the opinion of the court.

The replication of the demandant is not the proper replication for his case. Instead of traversing the seizin of William Webster, he ought to have replied that the tenant was tenant of the freehold. Jackson, on real actions, 96.

But issue has been joined upon the seizin of William Webster, and the question is, whether the evidence was eufficent to maintain the issue on the part of the tenant.

If it had been shown, on the part of the demandant, that the deed under which he claims was executed, acknowledged and recorded, before William "Webster caus-edjhe land to be attached, it would then have appeared that William Webster never had any estate in the land, which he could have set up against this demandant. His extent would have given him only the tenant’s right, a right in equity to redeem the land. It would have given him not even a right of entry against this demandant, until the mortgage of the demandant was discharged.

In such a case the demandant would have had a right to consider William Webster, who made the lease, and the tenant who entered under it, as disseizors, and might have maintained a writ of entry against' both, or either of them. For the tenant could not have been permitted to qualify his unlawful entry by saying he claimed only a particular estate, under one who bad nothing in the land. Jackson, on real actions, 97.

But it does not appear that the deed of the demandant was acknowledged and recorded, or that William Webster had notice of it. William Webster’s extent, then, gave him a valid title against the demandant, and the evidence was sufficient to maintain the issue on the part of the tenant.