81 Vt. 523 | Vt. | 1909
This cause was heard upon demurrer to the bill. On hearing the demurrer was sustained, the bill was adjudged insufficient and the same was dismissed. The orator appealed.
By the allegations of the bill it is made to appear that April 25, 1898, for the sum of $500.00, the defendant sold and conveyed to the orator a farm in Marshfield on which were three barns and no other buildings; that no cash payment was made but that the full purchase price was embraced in a note given by the orator to the defendant and secured by a mortgage on the farm; that by the terms of the note the orator was to pay the first year’s interest at the end of one year, the second year’s interest at the end of two years, and that, at the end of the third year, he was to make his first payment on the principal of the note, such payment being $150.00; that the interest payment of
There was in the deed given by the defendant to the orator a provision that the latter should pay the taxes for the then current year, 1898. The bill avers that the defendant fraudulently procured the town clerk of Marshfield to insert this provision; that the provision was contrary to the agreement of the parties and that the orator was for a long time after the transaction of sale and mortgage ignorant of the fact that there was such a provision in the deed. The bill does not state for how long a time the orator was so ignorant. It appears from the bill that the taxes for the year 1898 were something less than $11.00, that the defendant paid these and that on March 3, 1899, he brought a suit against the orator for the amount of such taxes making the suit returnable before a justice of the peace March 22, 1899. The bill alleges that on this writ there was attached by the defendant’s direction personal property of the value of more than $200.00 being as the defendant knew all the personal property of the orator. The bill sets out that the parties appeared before the justice on the return day, that the case was continued to March 28, 1899, at which time the justice
It appears that thereafter before the term of court to which the foreclosure suit was returnable the barns referred to and the produce therein all of which was insured for $475.00 were entirely destroyed by fire; that a provision of the insurance policy provided that it should be void if foreclosure proceedings were commenced without the written consent thereto of the company indorsed on the policy; that this foreclosure was commenced without such indorsement of consent and without such consent, and that so, as the orator has since been advised, there was no insurance money to go to anybody. See Findlay v. Insurance Co., 74 Vt. 211, 52 Atl. 429, 93 Am. St. Rep. 885, a case brought upon the policy in question and referred to in the orator’s bill. The bill avers that the commencement by the defendant of foreclosure proceedings without the consent of the Insurance Company was a fraud upon the orator.
Reference has now been made to the claimed grounds of relief existing when the decree of foreclosure passed. The specific prayers of the bill relevant to the recitals thus far made' are that the foreclosure decree of 1899 be vacated and set aside, that the orator’s deed taken April 25, 1898, be reformed so that the provision that the orator pay the taxes for 1898 be excluded, that the defendant be required to' account for the property sold under execution on the judgment obtained against the orator for the amount of said taxes and costs, and that the amount of the mortgage debt be reduced $475.00 with some interest because of the action of the defendant in commencing foreclosure proceedings as he did. The bill gives no reason why the claims so far referred to were not made in the foreclosure proceedings except to say that through “some misunderstanding” between
The bill avers that the orator has been in continuous possession of the farm from the time of its purchase by him to the date of the bringing of this bill, but that during the year 1900, the defendant pastured certain cattle and horses on the farm and that no accounting has been had with reference thereto. There is nothing in the bill inconsistent with the supposition that the defendant merely hired the orator to pasture the cattle and horses, and no claim that the defendant has not been at all times ready to account. The bill also alleges that in July, 1900, the defendant entered upon the premises and cut and harvested hay which the orator had contracted to sell standing for $100.00 intending to apply said sum on the mortgage debt, that so the defendant has deprived the orator of the benefit accruing under said contract, and that the orator has commenced an action of trespass for his damages sustained by the action of the defendant in cutting and harvesting the hay as aforesaid. The allegations as to the cutting of hay, like those as to the pasturing of stock are extremely vague. Whatever was done was done before the decree expired.
The first payment under the decree was to be made on or before September 7, 1900, and consisted of costs and interest
The receiving of the whole or a part of the mortgage debt either directly or indirectly after the time for redemption has expired is of itself sufficient to let in the mortgagor to redeem. Converse v. Cook, 8 Vt. 164, 169; Smalley v. Hickok, 12 Vt. 153, 163; Gilson v. Whitney, 51 Vt. 552. But what was done here, whatever it may have been, with regard to pasturing and harvesting was done while the decree was running,- and the effect to .be given to those things must be determined by equitable considerations of a general character. Pierson v. Clayes, 15 Vt. 93; Hyde v. Hyde, 50 Vt. 301. The bill does not allege that the pasturing and harvesting rendered the orator unable to meet the payment of $180.00 to be made by April 25, 1902, nor that the defendant was unwilling to have their value applied on such payment. The bill does not allege that the harvesting was tortiously done but merely alleges that the orator has seen fit to sue the defendant in trover on account of the harvesting. In addition to the prayers of the bill already referred to the orator prays for a general accounting, and for permission to redeem .on payment by him of such sum, if any, as on the accounting may' be found to remain due on the mortgage in question, and accompanies this prayer with an offer to pay such sum. General-relief such as may be appropriate to the case is asked. From the bill it appears that the orator has been in possession of the farm in question about four years, that he has paid nothing on the purchase price, that the defendant, under the decree of foreclosure, gets back the land which he sold without the buildings which were thereon at the time of the sale, and that no technical rule or general principle of equity entitles the orator to any relief under his bill without reference to the way in which it is framed or to the character of the relief sought.
Decree affirmed and cause remanded.