17 A.2d 319 | Vt. | 1941
In this chancery proceeding, which by permission of court has been reargued, the plaintiff prays by its petition as amended, in substance, that its equitable rights in and *450 to certain mortgaged premises be ascertained and protected; that three mortgages of real estate in the City of Burlington and the performance of the obligations therein secured be held in full force and effect as security to the petitioner under the terms of those mortgages; that said mortgages be held to be prior to all rights of any and all of the defendants in and to the mortgaged premises and that the claimed rights of the defendants in the premises be foreclosed. The defendants Vilas and Harvey were the only defendants who appeared and answered and defendant Vilas alone, hereinafter termed the defendant, has appealed to this Court. Hearing was had before the Chancellor and findings of fact were made and filed.
It appears from the findings that the three mortgages under which the plaintiff claims were dated September 15, 1930, December 2, 1932 and August 28, 1934, respectively, and that they were given to secure payment to the plaintiff of the sums of $1,000, $600 and $1,400, respectively; that the first two mortgages conveyed two different parcels of land and the third mortgage conveyed the same parcels that were covered by the first two mortgages; that the first two purported to be executed by John Seith and the third by George J. Cummings by John Seith having power of attorney, etc. This power of attorney had only one witness and no seal and was otherwise defective. It is further found that the first and second mortgages, hereinafter called the original mortgages, were discharged of record on October 5, 1934; that it was the intention of the parties to keep alive and on foot the original indebtedness owing by Seith to the plaintiff and that the discharge of the original mortgages resulted from the mistake of the plaintiff; that the $1,400 note which was secured by the third mortgage represented the balance due from Seith to the plaintiff on the day the third mortgage was executed, together with interest, costs and dues to the association and that this sum was never paid by Seith except by the execution of the note dated August 28, 1934.
It is further found that defendant Vilas obtained a judgment against Seith on August 23, 1933 and caused execution to be levied on the property here involved on September 14, 1933, and that attachment in said suit was made subsequent to the execution and recording of the plaintiff's original mortgages; that on April 2, 1933, Seith had conveyed the property to defendant *451
Cummings by deed which this court later held to be without consideration and fraudulent in law as against the judgment-creditor Vilas (see Vilas v. Seith,
The decretal order is that the discharge of the two original mortgages be cancelled; that these mortgages be reinstated for the purpose of securing the amount due the plaintiff on November 10, 1938, and that the plaintiff have a decree of foreclosure.
The defendant took exceptions to the findings and supplemental findings, and to the failure of the Chancellor to comply with his requests for findings. These exceptions are stated as follows: to the findings and supplemental findings as being unwarranted and unjustified under the evidence; to the failure to find as asked in the requests for findings because these requests embody material statements of the facts, not included in the findings and represent a correct summary of the evidence so far as they purport to state the facts; and to the findings in so far as they vary from and disagree with the requests for findings.
The exceptions to the findings are too general and indefinite to be available. Royal Bank of Canada v. Girard,
The defendant excepted to the decree "as being unjustified under the evidence, the findings, and the law applicable to the case." P.L. 1269, which provides for the procedure with respect to exceptions taken in hearings before a chancellor, applies only to rulings made on trial, and for that reason the propriety of a decree in chancery cannot properly be made the subject of an exception. But the appeal in this cause, apart from the bill of exception, brings before us the question whether the decree is warranted by the pleadings and supported by the findings. Stevens
v. Flanders,
The defendant contends that the decree is not warranted by the pleadings because the bill of complaint does not allege that the plaintiff acted with due diligence in discharging the two original mortgages without an examination of the record to ascertain whether any intervening liens had been placed upon the property. But in his answer the defendant has made the question an issue in the case and so, if this was an essential allegation under the circumstances, which we do not decide, the defendant was not harmed by its omission from the complaint. We must assume in aid of the decree that, although he made no mention of it, the chancellor found in favor of the plaintiff as he might have found, since under the circumstances due diligence did not necessarily require examination of the record. Hill v. Ritchie,
The next contention is that, while the chancellor found that there had been a mistake on the part of the plaintiff, he did not specify in what the mistake consisted, and therefore this is left a matter of speculation. But, from the other findings, the mistake is fairly inferable and we will therefore assume that the inference was drawn. Labor v. Carpenter,
Upon the findings the present case is controlled by Island PondNational Bank v. Lacroix et al.,
As the chancellor has found the cancellation of the discharge of the original mortgages will leave the defendants Vilas and Harvey in the same position as if said mortgages had not been discharged, enjoying the same rights that accrued to them at the time the attachment was put on the mortgaged premises, we think it would be unconscionable for them to set up that discharge on the record as an extinguishment of the plaintiff's equity.McKenzie v. McKenzie, supra.
Both Vilas and Harvey were charged with notice of what the records would reveal. Those records showed the discharge of the two original mortgages executed by Seith to this plaintiff, and the attempted execution by Seith as attorney for Cummings of an invalid third mortgage for a slightly reduced amount a short time before such discharge and also the decree of this Court setting aside the deed from Seith to Cummings, *454
which in the absence of evidence to the contrary we must assume was recorded as required by P.L. 1320. This record was sufficient to put both Vilas and Harvey on inquiry as to whether the debt to the plaintiff might remain unpaid with a consequent continuation in equity of plaintiff's mortgage rights against the property, and they were charged with such knowledge thereof as they could have obtained by reasonable inquiry. Woodbury v. Bruce,
The defendant has briefed some exceptions taken to the admission of evidence at the time of the hearing. The bill of exceptions must be construed strictly against the excepting party, (Higgins v. Metzger,
Decree modified to provide for discharge of record of theinvalid mortgage of August 28, 1934, and in other respects decreeaffirmed. Let a new period of redemption be fixed for whichpurpose the cause is remanded.