Young v. Currier , 63 N.H. 419 ( 1885 )

Hart could not avoid his liability upon the note and mortgage without giving up the property conveyed to him. Heath v. West, 28 N.H. 101; Heath v. Stevens, 48 N.H. 251; Hall v. Butterfield, 59 N.H. 354; Bartlett v. Bailey, 59 N.H. 408. His quitclaim to the defendant of his interest in the farm was an essential part of his recission of the contract expressed by the note and mortgage. Whether one half the mortgage debt was extinguished by the transaction is a question unnecessary to be determined, inasmuch as the defendant consents that the plaintiff may redeem her one half of the farm by paying one half of the mortgage debt. The recital in Hart's quitclaim, that in consideration of it he is released from liability upon the mortgage note, had no legal effect. The contract was avoided, and Hart's liability upon it ended by his refusal within a reasonable time after he became of age to be bound by it, and restoring the property. What would be the effect of a technical release of an infant from his unrepudiated contract upon the liability of his joint promissor, is a question which does not arise.

The erasure of Hart's name from the note by the defendant, after the contract was rescinded, was an immaterial alteration. Pequawket Bridge v. Mathes, 8 N.H. 140; Burnham v. Ayer, 35 N.H. 351; Cole v. Hills,44 N.H. 227, 232.

Case discharged.

BLODGETT, J., did not sit: the others concurred.