Bunker v. Manchester Real Estate & Mfg. Co.

• Decision Date: 01 December 1908
• Citation: 71 A. 866,75 N.H. 131
• Parties: BUNKER v. MANCHESTER REAL ESTATE & MFG. CO.
• Court: New Hampshire Supreme Court

71 A. 866

75 N.H. 131

BUNKER

v. MANCHESTER REAL ESTATE & MFG. CO.

Supreme Court of New Hampshire. Rockingham.

Dec. 1, 1908.

Transferred from Superior Court, Rockingham County; Chamberlin, Judge.

Action by Julia A. Bunker against the Manchester Real Estate & Manufacturing Company. Transferred on defendant's exceptions, on verdict for plaintiff. Exceptions overruled.

Trespass quare clausum. Plea, the general issue, title to the locus, and res judicata. Trial by jury, and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court, by Chamberlin, J. In February, 1902, the plaintiff loaned $500 to Alice M. Bean, and took a warranty deed of the locus as security therefor. The understanding between the parties was that the plaintiff should reconvey upon payment of the loan. The plaintiff also agreed that Gilman A. Bean, father of Alice, might cut his firewood on the locus while she held it, and because of this collateral agreement she did not at that time record her deed. The plaintiff knew that Alice was in pressing need of money, but was not aware that she was insolvent. Among others, Alice was indebted to one Head, who was pressing her for payment at the time she borrowed of the plaintiff, and continued to do so until early in November, 1902, when he asked her to furnish security, and was informed that she had conveyed the locus to the plaintiff. Head then called upon the plaintiff, and learned that she claimed to own the land. November 14, 1902, Alice told the plaintiff that she would be unable to redeem. The plaintiff thereupon agreed to take the land in payment of her debt, and recorded her deed. November 25, 1902, Head sued Alice, and attached the locus as her property, the action being entered at the January term. 1903, of the superior court. Some time in January, 1903, Alice's father obtained permission from the plaintiff to cut wood on the locus, and on February 6, 1903. Head petitioned for an injunction to restrain the plaintiff and the Beans from removing any wood from the premises during the pendency of his suit against Alice, alleging, among other tilings, that the conveyance to the plaintiff was fraudulent as to him. On this petition the following decree was made: "The above-entitled action having been duly served, and the defendants having appeared by their counsel, but no answer having been filed, now it is ordered and decreed that the plaintiff's bill be taken as confessed, that the said defendants, and each of them, be perpetually enjoined from taking any wood or timber from the land described in the plaintiff's bill under the pretended conveyance to said Julia A. Bunker, without prejudice, however, to any rights they, or either of them, may have to object to the levy by the plaintiff on said premises." Head recovered judgment against Alice at the October term, 1903, and levied on the locus, which was sold on the execution December 2, 1903, and came by subsequent conveyances to the defendants. The plaintiff objected to the sale, and notified the purchaser that she owned the land. Subject to the defendants' exception, one of the plaintiff's counsel testified that before the defendants purchased the land he told one Mead that there was great risk in buying it. The defendants also excepted to the denial of their motion for the direction of a verdict in their favor.

Eastman, Scammon & Gardner, for plaintiff.

G. K. & B. T. Bartlett, for defendant.

YOUNG, J. 1. It is unnecessary to consider the defendants' contention that the plaintiff is estopped, by the decree in the equity proceeding, to deny that her deed is fraudulent as to the defendants, for the decree itself expressly reserves to her the right to litigate the title to the locus.

2. The plaintiff's agreement to reconvey whenever Miss...