This is not a case of an attempt to assign a contract for support by either of the contracting parties, as in the case of Eastman v. Batchelder,36 N.H. 141, or of Flanders v. Lamphear, 9 N.H. 201. In this action the rights of Artemas Gotham, the party who was to be supported, cannot be affected at all. It appears that the condition of the deed from Artemas Gotham to Charles W. Gotham has been broken. Artemas Gotham may enter for condition broken at any time, have possession of the property, and take advantage of the forfeiture. As he is no party to this proceeding, his rights cannot be affected by it.
The sole question in this case is, whether Charles W. Gotham, who has conveyed these premises by a mortgage deed with full covenants of warranty, is in condition to say in this action that he had not the title which he bound himself by his covenant to warrant to the plaintiff. It appears to the court that he is not.
The plaintiff, if he have judgment for possession, will still have to make his peace with Artemas Gotham, against whom, if he sees fit to enter for condition broken, the judgment in this suit will be of no avail.
There must therefore be conditional judgment as of mortgage for the plaintiff.