Legal Opinion

Emerson v. Simpson

Supreme Court of New Hampshire

Decided June 15, 1862PublishedCited by 2 opinions

This is a writ of entry to recover thirteen acres of land in Wind-ham. The case was submitted upon an agreed statement of facts.

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This is a writ of entry to recover thirteen acres of land in Wind-ham. The case was submitted upon an agreed statement of facts. The demandants, Amos Emerson and others, in 1849, conveyed to one George Simpson, his heirs and assigns, the land demanded, by deed containing this condition : “Provided, nevertheless, if the said George Simpson shall neglect to keep up and maintain forever, at his own expense, a good and lawful fence, constructed of wood, or stone, on the line between his own land and land of said Amos and James Emerson, then this deed'shall be void,” &c. George Simpson, during his…

1Opinion of the CourtBell, C. J.

If this was the case of a covenant, the liability of the defendant to maintain the fence in question might depend upon the fact, which is not shown in the case, whether there was or not a fence around the land conveyed, at the time of the conveyance, according to the distinction taken in Spencer’s Case, 5 Co. 16, where it was resolved, that if the covenant concerns a thing which was not- in esse at the time of the demise made, but to be done upon the land afterward (for instance, to build a new wall on some part of the premises demised), the covenantor, his executors and administrators, would…

2Cases cited4 opinions

  1. Allen v. CulverNew York Supreme Court · 1846
  2. Ludlow v. New-York & Harlem RailroadNew York Supreme Court · 1852
  3. Thompson v. RoseNew York Supreme Court · 1828
  4. Lynde v. HoughNew York Supreme Court · 1857

3Cited by2 opinions

  1. Red Hill Outing Club v. HammondSupreme Court of New Hampshire · 1998
  2. DeBlois v. Crosley Building Corp. of Maine, Inc.Supreme Court of New Hampshire · 1977

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