Mahagan v. Mead ( 1884 )

The Quimbys' agreement in consideration of the loan to pay the defendants one half the proceeds of the land when sold, above the purchase-money, interest, and taxes, was not within the statute of frauds, and was valid. Graves v. Graves, 45 N.H. 323. The evidence to establish it was properly received; it did not contradict or affect the contract shown by the note and mortgage. If the agreement was usurious, it was not void. G. L., c. 232, ss. 3 and 4. The release of the Quimbys from that agreement was a valuable consideration for their conveyance of lot A to the defendants, and for aught that appears may have been equal in value to their interest in the lot. After that deed the defendants held an unincumbered title in fee to lot A, and their mortgage upon the remainder of the Vail tract for the full sum of $250. The plaintiffs claim under Mrs. Quimby by subsequent deeds, and take the portions of the tract conveyed to them subject to the mortgage.

The title to the plaintiffs' lots passed from Mrs. Quimby long before the commencement of the defendants' suit against her. The plaintiffs were neither parties nor privies to that suit, and are not affected by the judgment. For the same reason they are not bound by the award, and as they are not, neither are the defendants in this proceeding, however it might be as between them and Mrs. Quimby, but for the judgment. If the defendants and Mrs. Quimby had agreed upon the amount due upon the mortgage, it would not affect the plaintiffs; they might nevertheless show that nothing was due upon it, and it would be as against them equally open to the defendants to prove that the whole was due. Such an agreement would be evidence against the defendants, but not conclusive. The result is, that $81 must be applied upon the mortgage note as of April 1, 1871, and that the remainder is due to the defendants.

Case discharged.

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