28 Vt. 382 | Vt. | 1856
was delivered, at the circuit session in June, by
The general object of this bill in chancery is to pbfain relief from the payment of a promissory note, executed toi
It is stated in the bill that this note is still the property of Mr. Johnson; that it was delivered by him'to Mr. Tabor, for collection,, and for no other object, and that for the same purpose, the note was delivered, by Tabor, to Thrall. Thrall, in his answer, admits that he has no personal interest in the note, and that he commenced the suit in his own name for collection, and for the benefit of Tabor, from whom he received it. So far, therefore, as Thrall is concerned, the note is subject to every defense that it would be if it had been prosecuted in the name of Tabor. Tabor, in his answer, denies that this note is the property of Johnson. He says that it was transferred to him. by Johnson, as collateral security, for advances which he had, and which he thereafter was to make ; and that, relying upon that security, he had advanced to Johnson about one-half of the amount of the note. He denies any knowledge of the contract or dealing of the parties, from which the note originated, or that any defense existed to it. He admits, however, that he received the note from Johnson, after it was over due, and that he delivered the note to Thrall for collection, and that, when collected, after the payment of his advances, the surplus belongs to Johnson. The same facts, in relation to the transfer of the note to Tabor, are substantially stated by Johnson, in his answer. The indefinite manner in which that matter is left in the several answers, as to the amount of those advances, the time when they were made, and of what they consisted, and the repeated declarations of Tabor, as proved by several witnesses, that he had no interest in the note, nor in the suit then pending upon it, and that the affairs of Johnson were deranged, and were placed in his hands for the purpose of arranging them, and removing from him the embarrassments they occasioned, leaves the matter doubtful, to say the least, whether the facts stated in the bill are not sufficiently proved. That question, as one of fact, however, does not become
The whole subject of controversy is, therefore, resolved into the inquiry whether, as between the original parties to that note, the facts proved in this case will justify an application to a court of chancery for the relief for which the orator has prayed, On that subject, it appears that on the 30th of March, 1840, the orator contracted with the defendant Johnson for the purchase of one equal and undivided half of a saw-mill in Dorset, known as the “ Markham Mill,” together with a small tract of land adjoining, and that the note now in suit, with the two others which were paid as they became due, were given in payment for the property so purchased. It also appears that, at that time, these premises were, and had been from the 17th of June 1837, jointly owned by Johnson and one Benoni Fisk, in equal and undivided moieties, and that they were also the owners of about fifty acres of land adjoining these premises, and that on the 17th of June, 1837, all these premises were mortgaged to Human Markham, for the payment of about $378.33, which, with the interest upon it, was due at the time of the conveyance from Johnson to the complainant. ‘That mortgage was afterwards transferred to J. & B. Yail & Co., who, since the 1st of April, 1845, have, as assignees of the mortgagee, been in possession of the mortgaged premises. Johnson, in his answer, admits the execution of the mortgage deed, its assignment to the
The decree of the chancellor, enjoining the suit at law, is affirmed, and also in relation to the costs at law and in equity.
The commencement of the deed was in the usual form of a bargain and sale; the premises conveyed were described as “ all my right, title and interest that I have in the premises, privileges and appurtenances of the saw-mill,” &c. The habendum clause was in the usual form, and then followed this covenant: “And I the said Aaron Johnson, do for myself, my heirs, executors and administrators, covenant to and with the said Andrew Bowen, his heirs and assigns, that I will warrant and defend the aforesaid premises to him and them, againsf all claimswhatsoever,” after which followed the in test, clause.