Jewett v. Berry

It is nothing to the purpose, that no personal representative of Jacob Wentworth has appeared to claim the term of nine hundred and ninety-nine years, created by the indenture in 1825, between the plaintiff and others on the one part, and Jacob Wentworth on the other. Nor is the defendant required to show any privity with the lessee, unless the plaintiff is in a position to maintain the present action.

*40That term is still outstanding, at least as against this plaintiff, by estoppel, and it is not necessary to inquire whether, as the surviving trustee under the will, he had the power alone to make the lease, or whether the inhabitants of the district with whom he joined in that act, were the proper parties to make it. The mere omission to pay the rent does not work a forfeiture of the term, unless the rent be demanded on the day it is due, and upon the premises out of which it issues. McMurphy v. Minot, 4 N. H. 251; Sperry v. Sperry, 8 N. H. 477.

Neither is he able to maintain this action under the will, which provided that in case the district should fail to appropriate the proceeds of the farm to the purposes of instruction, his nephews should have the land, to hold in trust for the same purposes. There has been no entry for condition broken. Willard v. Henry, 2 N. H. 120.

It is clear, therefore, that this plaintiff has no possession of the land which entitles him to maintain this action. By the agreement of the parties, therefore, thei’e must be

Judgment for the defendant.