Landlord and tenant act — Pleading.
In an action by a married woman, under the landlord and tenant act, the defendant pleaded that the plaintiff's husband, being indebted to him, had theretofore conveyed the premises, through a third person, to the plaintiff, without consideration, and to hinder and delay the defendant in the collection of his debt. Held, bad on demurrer.
HILLSBOROUGH COUNTY.
LADD, J.
The plea shows no right or title in the defendant, either by the levy of an execution against James Ritchie, Jr., or otherwise. The validity of the conveyances upon which, according to the plea, the plaintiff's title depends, cannot be put in issue in this way. Jones v. Bryant, 13 N.H. 53. The demurrer must be sustained.
CUSHING, C.J.
I can add nothing in this case to what has been said by my brother LADD.
SMITH, J.
The defendant complains that she is entitled to the possession of a certain tenement; that the defendant was duly notified in writing to quit the same, vet is still in possession thereof without right. She does not set out the particulars or origin of her title. What title she intends to rely upon does not appear. The defendant cannot set up a particular title for her, allege that the claims under that title, and plead matter of estoppel to bar a recovery under it. Whittemore v. Shaw, 8 N.H. 393; Potter v. Baker, 19 N.H. 166; Hunt v. Haven, 52 N.H. 162.
If the plaintiff claiming under a deed fraudulent as to creditors of her husband, the deed is good until avoided by them. The defendant, if one of his creditors, can, by attachment and levy of his execution upon the land, test the validity of the deed from Upton under which the plaintiff claims (if she claims under that), and thus avoid the deed if the conveyance was fraudulent as to her husband's creditors; but until that is done the deed will protect her title.
Demurrer sustained.