Morse v. Child

Green, J. delivered the opinion of the court. A new trial is claimed in this case, because the evidence, offered by the tenants to prove the agreement between Fifield, and Pulsifer & Wells, to cancel the deed, was rejected. But we are of opinion that the evidence was rightly rejected. It has been settled that a mere agreement to cancel a deed, without actually cancelling it, cannot have the effect of a reconveyance. 4 N. H. Rep. 191, Farrar v. Farrar. Another ground, on which a new trial is claimed, is, that the demandant is estopped to claim the land against the tenants, because Fifield, whose title the demandant has, was an appraiser in their extent, and set up no title then to the land. If the extent, under which the tenants claim, had been perfected so as to be sufficient to pass the land, and it had appeared that Fifield set up no claim when the extent was made, we are not prepared to say that Fifield, or any one claiming under him, could have been permitted to set up a title against the extent. But the execution, which was extended upon the land, was never returned, and of course the extent was of no validity to pass the title. And we are not aware of any ground on which it can be held that Fifield, or any one claiming under him, is estopped to say, that nothing passed by the extent. FifiekPs conduct may have been such as to preclude this demandant from setting up any title against a title acquired by the extent, but it cannot preclude him from saying that no title was acquired by the extent. [524] We are therefore of opinion that the demandant is entitled to Judgment on the verdict.