MARSTON v. OSGOOD

A levying creditor's conveyance of land with warranty is competent and sufficient evidence of his acceptance of seizin. One in possession of real estate under a bond for a deed is equitably entitled, upon performance of his part of the contract, to a conveyance from one claiming under a levy on execution against the obligor; but as defendant in a writ of entry, his right to a deed is no defence to the legal title of the levying creditor or those claiming under him.

CARPENTER, C. J.

The levying creditor's conveyance of the land with warranty was competent and sufficient evidence of his acceptance of seizin.

The defendant was in equity entitled to a conveyance upon the performance of his part of the contract. He owned an interest in the land. P. S., c. 233, s. 19; Edgerly v. Sanborn, 6 N.H. 397, 399. Of this interest his possession of the premises was constructive notice. Pritchard v. Brown, 4 N.H. 397; Cutting v. Pike, 21 N.H. 347. His equitable right to a conveyance was not affected by the levy. Under it the creditor took the legal estate, subject to the equitable obligation to convey the land to the defendant on his performance of the conditions of the bond. 1 Sto. Eq. Jur., ss. 784, 788.

But the defendant's remedy for a denial of his right is in equity. A full performance of the conditions of the bond before the levy or attachment would, in the absence of fraud, afford him no defence to the present action. Ela v. Pennock, 38 N.H. 154.

Exceptions overruled.

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