22 Vt. 617 | Vt. | 1850
The orators brought their bill to foreclose a mortgage executed to them, in 1837, by the defendant Horace Needham. And, to entitle them to all the relief sought against the other defendants, it was necessary to show, that Horace Needham had an estate in one third of the farm at the time of giving the mortgage. If he then had no title, the orators could only claim to hold, by operation of the covenants in the mortgage deed, the interest which, in that case, must afterwards have come to him by inheritance from Benjamin Needham, his father; and that interest was less than the one which the deed purported to convey. It is contended by the other defendants, that, at the date of the mortgage, he had no interest whatever in the farm; but that his estate, acquired under the deed from Benjamin Needham, in 1828, had been forfeited and determined, in consequence of his neglect and refusal to make the annual payments to said Benjamin, according to the condition annexed to that conveyance. There is some apparent incongruity between the different parts of that condition; and perhaps it might well be questioned, whether the non-payment of the annual thirty dollars was really intended, under any circumstances, to affect the estate of Horace after the decease of his parents. But such a question has not been raised by counsel, and this branch of the case will be determined with reference only to the concluding part of the condition. That professed to avoid the deed entirely, if any of the annual payments should be called for, and not made. And to make good this ground in the defence, it must be shown, that a cause of forfeiture occurred, and that the forfeiture was actually claimed and taken.
It is not at present deemed important to inquire, whether the deed was founded upon an actual consideration of value, beyond the annual payments provided for in the condition, or whether, aside from those payments, it was a voluntary conveyance. Such an inquiry may sometimes be important, when a party comes into a court of equity to seek relief against a forfeiture; but such was not the admitted or apparent object of the bill in this case.
It is evident, that the payments mentioned were not expected to be annually needed, as means of support for the parents, and possibly they were not relied upon at all for that purpose. And hence
The remaining ground of defence is, that Benjamin Needham was in possession of the entire farm, holding adversely to Horace, when the mortgage was executed; and that it was thereby rendered void under the statute. The evidence to make out such an adverse possession at that time is derived from the fact, that Horace had removed from the farm some two years before, leaving the whole possession with Benjamin, — and from various declarations of the latter, in effect denying that Horace retained any title, or interest, in the farm. It is claimed, that the removal should be treated as an absolute abandonment on the part of Horace. But the testimony is silent as to the cause and purpose of that act; and a sole possession by one tenant in common is not presumed to be adverse to the co-tenant. The ordinary presumption is, that such a possession is beld in the right of both tenants. And although this presumption
The decree of the chancellor is affirmed.