Opinion
Decided June, 1879.
In an action by the purchaser for deceit in the sale of land, the jury will not be instructed to return a verdict for nominal damages, for the reason that the plaintiff has failed to pay off a mortgage on the premises conveyed, which he assumed and agreed to pay as part of the purchase-money. But, the mortgage debt being fully due, judgment will not be entered on a verdict for the actual damage until the plaintiff performs his agreement by paying off the mortgage.
CASE, for deceit in the sale of land. Plea, the general issue.
The evidence tended to show that the defendant pointed out to the plaintiff, as included in the sale, a certain piece of woodland of considerable value which he did not own, and which was not included in the premises described in the deed which he gave the plaintiff. That deed contained the following condition:
"The said premises being subject to a mortgage to M. D. Stokes for eighteen hundred dollars, which mortgage said grantee assumes as a part of the consideration of this deed, and this conveyance is made on the condition that said grantee pay said mortgage, and if said mortgage is not paid then said granted premises to revert to said grantor.
The evidence tended to show that at the time of the conveyance the plaintiff paid the defendant five hundred dollars, and gave his two notes for one hundred dollars each as the consideration for said conveyance, in addition to assuming the mortgage; that he had since paid five hundred dollars on the mortgage debt, but that the remainder of the mortgage debt and interest is unpaid, and was overdue when this suit was brought.
There was no evidence of any entry upon the granted premises for breach of the above condition.
The defendant claimed, and asked the court to rule, that upon the foregoing facts the plaintiff could only recover in this suit nominal damages; but the court declined to so rule, and the defendant excepted.
Verdict for the plaintiff, and motion for a new trial.
Sulloway Topliff, for the defendant.
Morrison Bartlett, for the plaintiff.
There is no occasion for a new trial. The facts are found, and the proper judgment will be rendered in due time. The mortgage debt is due; the plaintiff agreed to pay it; and he should not have judgment before he performs his agreement. When he performs it, he will be entitled to his actual damages. The rights of both parties will be protected at the trial term. Roberts v. Peavey, 27 N.H. 477, 502; Stone v. Clough, 41 N.H. 290, 300; Heywood v. Hartshorn, 55 N.H. 476, 483; Hobbs v. Hobbs, 58 N.H. 81; Moore v. Kidder, 58 N.H. 115, 116; Taft v. Barrett, 58 N.H. 447, 458; Marston v. Stickney, 58 N.H. 609, 611; Martin v. F. F. Ins. Co., 9 Vroom 140.
Case discharged.
STANLEY, J., did not sit: the others concurred.