Carrasco v. Mason

In view of the order of the superior court, to which no exception was taken, that judgment be entered in favor of the plaintiff against Mahlon L. Mason, it is to be assumed that by the extent the plaintiff acquired whatever interest Mahlon had in the land, and as against him is entitled to the possession. Coos Bank v. Brooks, 2 N.H. 148; Pritchard v. Brown,4 N.H. 397, 402, 404; Kelly v. Burnham, 9 N.H. 20, 22; Wendell v. Bank,9 N.H. 404, 418; Hovey v. Bartlett, 34 N.H. 278; Bryant v. Morrison,44 N.H. 288; Davis v. Barnard, 60 N.H. 550, 551.

But is she entitled to the possession as against Nathaniel? The fair meaning of the case is that by the will of Francis, the purchase by Nathaniel of Catherine's interest thereunder, and the settlement of the administrator's account, Nathaniel became the owner of the debt and mortgage upon which he bases his claim to the land. He was under no obligation to pay his father's debt; and the entries made by the administrator, wherein he charged Nathaniel with the amount of the note and credited the estate with a like amount, tended to show that Nathaniel thereby became the owner of the mortgage debt. And such a finding is included in the court's order denying the plaintiff's motion for judgment against Nathaniel. Being the owner of the debt and mortgage, and in possession of the premises, this action cannot be maintained against him.

Exception overruled.

All concurred.