50 Vt. 14 | Vt. | 1877
The opinion of the court was delivered by
L. P. Poland conveyed to Courser the premises in question in 1860, situate on opposite sides of a highway, Courser on the same day mortgaging the same back to Poland to secure a note for $500. On the same day he mortgaged to Wood to secure a note for $750, which note and mortgage were after-wards assigned to Poland. In January, 1864, Courser deeded to Lucinda Jones the part of the premises west of the highway, by deed conditioned to pay said mortgages up to $1297. On the same day she mortgaged to Stiles to secure a note for $500. She died in 1869. Randall, as her executor, sold, in 1870, that property to Bailey, the orator, warranting against said Jones and himself. In 1871, Bailey conveyed the same to Scribner by deed of warranty. On April 13, 1868, Courser deeded to Wright the parcel on the east side of the highway, and on the 17th of April, 1871, Wright conveyed to Paine. The $500 note to L. P. Poland became the property of Shattuck, and was paid to him the 22d August, 1864, by Jones. The note of Jones to Stiles for $500 be
These facts are set forth in the present bill, and it is further alleged that Holden knew that the $500 note to Poland had been paid, and that the other parties to the cause knew it; that said decree was procured without producing and filing said notes, and that the said parties consented to that decree in collusion against Bailey, the orator in the present bill. This bill sets forth that Wright and Paine brought their bill into the September Term, 1875, against Scribner, stating said several conveyances before named and said suit and decree of Holden, and that Wright had been compelled to pay, and had paid, the said decree of Holden with interest; and praying that Scribner be decreed to repay the same, or be foreclosed of his title to the property conveyed to him by the orator Bailey, that said bill of Wright and Paine was pending, and that Bailey had been cited by Scribner to defend the same.
Bailey, the orator, by his warranty to Scribner, is subjected to the consequences of any established and enforced incumbrance resting on the property when the warranty was made. The decree in favor of Holden establishes the incumbrance of $1,000 against the defendants in the foreclosure by Holden, of whom Scribner was one. That sum was computed for $500 of it on the note and mortgage to L. P. Poland, the rest of it on the note of Lucinda Jones to Stiles.
The demurrer admits that the note to Poland had been paid, and was embraced in that decree of Holden, by collusion of himself and the defendants in Holden’s foreclosure suit. It also admits that payments had been made prior to that suit on the note of Jones to Stiles.
Two of the parties to that collusion, viz., Wright and Paine, have brought their bill against Scribner to enforce that decree
And the orator is to be allowed his costs of this suit.
The decree of the Court of Chancery is affirmed, and a mandate is sent to that court according to the views above expressed.
Upon the opinión being read and the decision announced, counsel for defendants asked leave to withdraw the demurrer, and to be permitted to make answer, and defend on the facts on reasonable terms. This would require that the decree should be reversed, and the cause remanded, to be proceeded with de novo. The application was denied. It was deemed unjust to the orator to subject him to the protraction of the litigation, after it had gone to a final decision in the Supreme Court, upon such defence as the defendants elected to make, and upon their appeal from a decree against them in the Court of Chancery. It was their right, in accordance with rule and usage, in an answer as to matters of fact, to have traversed the sufficiency in law of the facts alleged in the bill, as by demurrer, and to the same effect. Having chosen to rest their defence upon the facts confessed by the demurrer, and carried the experiment to the last extremity, it was regarded unwarrantable to allow the litigation and the decision upon it to go for nothing, and permit the cause to be put back as it was upon the filing of the bill, when the only reason assigned for it, was, that “ defendants’ solicitors had erred in their judgment of the law.”