81 Vt. 160 | Vt. | 1908
This is an appeal in chancery. The orator sold and conveyed his messuage in Lyndon to Lydia Hutchinson, a married woman, for a thousand dollars, of which she paid two hundred dollars down, and gave him promissory notes for the balance, signed by herself and husband; and also gave him a mortgage on the messuage to secure the notes, but the mortgage was void as *a legal mortgage because her husband did not join therein as a grantor, though he signed and acknowledged it.
The orator seeks relief against the land by foreclosure or in some other way, for the satisfaction of his notes. He brought a suit once before, for the same purpose, but failed, and the bill was dismissed after this suit was commenced. The defendant, pleaded in abatement the pending of that suit. Thereupon the orator amended his bill on leave. Subsequently, and after the former bill was dismissed with costs, pursuant to the mandate of the Supreme Court, the defendant pleaded that adjudication in bar of this suit. The printed case does not show whether these pleas were traversed or not, though the orator’s brief says that the plea in bar was traversed, and the defendant’s brief says that the plea in abatement was not traversed. In this uncer
From the fact that the decree overruling the exceptions and one of the pleas allowed to the defendant the costs of the plea because the second bill embraced the whole subject in dispute more completely than the first bill; and from the further fact that the decree refers to 2 Dan. Ch. PI. & Pr. *721, for authority on the subject, which states the practice in that regard respecting pleas of former suit pending, — it clearly appears that that was the plea overruled, for the awarding of costs as of a plea allowed is applicable only to such pleas, as to which the practice is, when the second bill embraces the whole subject more completely than the first, to dismiss the first with costs, and to direct the defendant in the second to answer on being paid the costs of a plea allowed, which puts the second bill in the same situation it would have been in had the first been dismissed before the second was brought. Story’s Eq. PL, Bedf. ed., §738; Tyler’s Mitf. Eq. Pl. & Pr. 339; 2 Dan. Ch. Pl. & Pr. 721*. Mr. Hoffman says that if the master reports that two bills are for one and the same purpose, the second bill must be
Now although the benefit of this plea was saved to the hearing, yet that can avail the defendant nothing, for saving the benefit of a plea to' the hearing means, that if, on argument, it is considered that as far as appears the plea may be a defence, but that there may be something disclosed in the evidence that will avoid it, supposing the matter pleaded to be strictly true, the court will not preclude the question. Story’s Eq. PL, Redf. ed. §698; Tyler’s Mitf. Pl. & Pr. 391; 1 Hoff. Ch. Pr. 224. Mr. Daniels says that such an order is, in fact, nothing more than an order to adjourn the discussion. 2 Dan. Ch. Pl. & Pr. 800*. Heartt v. Corning, 3 Paige 566, is a good illustration of when the benefit of a plea will be saved to the hearing. That was a bill by a surviving partner against the executor of the deceased partner, for an accounting and a settlement of the partnership affairs. To a part of the bill the defendant pleaded accounts stated and settled, and the balances carried forward by the partners to new accounts. The court thought, on argument, that if the plea turned out to be true in fact, it would be sufficient to prevent a general accounting for the time covered by it, but as it was possible that something might be disclosed in evidence that would make it proper to permit the complainant to surcharge and falsify the accounts,
But the defendant says that as the orator did not take- issue on the plea, he thereby admitted both its truth and its sufficiency, according to Bule 16, which provides that the complainant shall set down a plea for argument, or take issue on it, in such a time, or be deemed to admit its truth and sufficiency, and his bill be dismissed as of course. The rule aside, the practice is, not to reply to a plea of a former suit pending, nor to set it down for argument, but to refer it to a master at once and of course, to ascertain and report whether both suits are for the same matter; and if they are found to be, the plea is allowed; and if they are found not to be, it is overruled. Battell v. Matot, 58 Vt. 271, 281, 5 Atl. 479; Story’s Eq. Pl. Redf. ed. §§738, 743; 2 Dan. Ch. Pl. & Pr. 726*; Tyler’s Mitf. Eq. Pl. & Pr. 337. We do not consider whether the- rule was intended to embrace pleas of this kind or not, for if it was, and issue should have been taken on the plea, the defendant having treated the case throughout as though the plea was regularly -at issue, it is too late for him to raise the question now for the first time. Tilghman v. Proctor, 102 U. S. 707, 734.
As to the plea in bar, it does not appear to have been disposed of at all below, other than by the master’s report and overruling the exceptions thereto. But it is to be noticed that the adjudication it sets up as a bar was made on a demurrer to the bill for want of equity, and not on the merits of the
Now the precise point decided by the adjudication pleaded in bar was, that as the facts alleged then were the same as when the ease was passed upon before, the decision must be the same. Therefore the adjudication pleaded is no bar to this suit, which sets up a further and fuller state of facts, and goes for validating and enforcing the mortgage held void in the former suit, or for treating it as an equitable mortgage, and enforcing it as such.
But the defendant further contends under this plea, that when the former case was remanded from the Supreme Court with liberty to apply, there was then presented to the orator a choice between specific performance and rescission, and that he chose rescission by amending his bill and praying for it, and prosecuting the suit to final decree, and therefore is now concluded by that election, as those remedies were inconsistent.
But though an orator is not allowed to set up two inconsistent states of fact, and ask relief in the alternative, any more than a defendant is allowed to set up inconsistent defences; yet he may set up a single state of facts, and ask relief in directly opposite alternatives, as was done in McConnell v. McConnell, 11 Vt. 290. There the bill was drawn in a double aspect, as the Court said it well might be, so that if the orator failed to establish one ground for relief he could rely upon another ground, though wholly or in part inconsistent with the former. The bill alleged that the defendant, the orator’s
It remains to consider whether the orator has any and what remedy on the merits of the case. As it does not appear that the messuage in question was the separate property of Mrs. Hutchinson, who died before suit brought, it must be taken that it was not her separate property, and consequently, that her husband, who is' in parts unknown, has a freehold therein. Therefore the defendant claims that the mortgage Mrs. Hutchinson gave, not being joined in as grantor by her husband, is void, and cannot operate as an equitable mortgage; nor be reformed in equity; nor treated as an agreement to give a valid mortgage; and if it could, that equity will not decree a specific performance of it, as she was a married woman.
When the former case was here the first time — 73 Vt. 134, 50 Atl. 810 — we said, as the case was presented, that said mortgage was void, and could not be validated without statutory power, and that the transaction could not be treated as an equitable mortgage. But the case now presented is essentially different from the case then presented. By that case, as was said
The statute that “a husband and wife may, by their joint deed, convey the real estate of the wife as she might do by her separate deed if unmarried,"- — the construction of which is not affected by the Married Women’s Act of 1884, P. S. 3039, as was held in 73 Vt. 137, 50 Atl. 810 — does not declare the separate deed of the wife void, nor imply that it is void, except as resulting from the effect of coverture. It has regard only to the effect of coverture at common law, and was intended to provide a way by which she could, at law, transfer the title- of her real estate notwithstanding the common law effect of coverture. It is an enabling act, and not a disabling or restrictive act, and cannot be regarded as trenching upon the scope of equitable jurisdiction and interposition in reference to the rights, liabilities, and duties of married women in respect of their property and contracts. Frary v. Booth, 37 Vt. 78, 83.
The reason that a married woman can in equity and for her own benefit charge her real estate that is her separate property, is that she holds it to her sole use, to the exclusion of the marital rights of her husband. But as to her real estate not thus held, she cannot deprive him of his marital rights therein without his consent, not even by statutory authority. Hubbard v. Hubbard, 77 Yt. 73, 58 Atl. 969. But when he does consent, it would seem that the common law effect of coverture should
The ground of that decision must have been that as against the husband and the children, the transaction alleged and proved entitled the orator, in equity, to have the security that it was agreed and intended he should have, — that it constituted an equitable mortgage to the same intents as a mortgage joined in by the husband would have constituted a legal mortgage.
Decree affirmed and cause remanded.