Legal Opinion

Murray v. Whitcomb

Supreme Court of New Hampshire

Decided December 5, 1876PublishedCited by 2 opinions

Bill in Equity, to foreclose a mortgage. The answer admits the execution of the mortgage, and. states, in substance, that the defendants purchased of the plaintiff’s testator a farm known as the “ Richard Ford farmthat the parties knew what lands were to be conveyed, but the testator, when he made the deed, omitted, by accident or design, to include in his conveyance a large tract of land, of great value, that was included in the purchase, and that the mortgage and note in…

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Bill in Equity, to foreclose a mortgage. The answer admits the execution of the mortgage, and. states, in substance, that the defendants purchased of the plaintiff’s testator a farm known as the “ Richard Ford farmthat the parties knew what lands were to be conveyed, but the testator, when he made the deed, omitted, by accident or design, to include in his conveyance a large tract of land, of great value, that was included in the purchase, and that the mortgage and note in question were given to secure the purcliase-money. On the plaintiff’s motion, the court rejected the answer, and the…

1Opinion of the CourtBingham, J.

We understand that the land purchased, but not conveyed to the extent of its value, increased the sum for which the note was given, and that there was a want of consideration for the note, to the extent of the value of the land not conveyed.

It is claimed that the contract was entire, and that it has never been rescinded — Way v. Cutting, 17 N. H. 451; that the defendants still hold the deed of the lands conveyed, and, as the failure is only partial, and the value of the land omitted cannot be determined by computation, no deduction can be made from the note. Sanborn v. Osgood, 16 N. H. 112;…

2Cited by2 opinions

  1. Nelson v. HallSupreme Court of New Hampshire · 1880
  2. Stratton v. StrattonSupreme Court of New Hampshire · 1925

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