141 A. 682 | Vt. | 1928
This an appeal in chancery from a decree in favor of the orator. The appellants are husband and wife. The decree was based upon facts found by the chancellor. By these it appears that the orator, negotiating with the husband who was buying for himself and wife, sold them the farm and personal property described in the bill for $3,000 on terms that $500 should be paid in cash, and the balance should be paid by a note secured by mortgages on said property. The orator and his wife then conveyed the real and personal property to the defendants. The $500 was paid. Mortgages on the property together with a note for $2,500, all signed by the husband alone were executed and delivered to the plaintiff. The papers were made by a town clerk. Later a suit was brought on the note, which went to judgment, and a small sum was realized on an execution sale for application thereon. Thereafter, a petition for foreclosure was brought by the orator in which the defendants filed and affidavit of defense setting up their coverture. The orator then amended his petition so as to ask for specific performance or cancellation of the deed he had given the defendants, for an accounting, and for general relief. The bill was not demurred to. The papers covering this farm deal were made in Mrs. Gauthier's absence, and it is found by the chancellor that there was no particular arrangement that she should sign the mortgages, but it "was expected and understood" that valid mortgages on the property should be given. The meaning of this last statement is important. We must read it so as to support the decree, if this can reasonably be done. Reed v. Hendee,
That we have correctly construed the clause of the findings above referred to is verified by the decree which was made by the same chancellor who made the findings. The decree says: "From said finding of facts it being evident that when the said real estate and personal property were bargained for by said defendants, it was understood between the parties that a valid real and personal property mortgage was to be given to the plaintiff," etc. While the decree cannot be referred to to supplement the findings — it only purports to construe them — it may be referred to to ascertain the meaning of the findings, since it was made by the same chancellor.
The defendants have not fulfilled their agreement. They have not given valid mortgages on the property. The result is that the defendants have the property, and the orator has no security. To the claim that no fraud has been perpetrated by the defendants, the answer is that there will be if the orator's remedy fails here. Equity does not tolerate such a result. We recently approved the doctrine that in equity a trust is implied whenever the circumstances are such that the person taking the legal estate, whether by fraud or otherwise, cannot enjoy the beneficial interest without violating the rules of honesty and fair dealing. Miller v. Belville,
The defendants contend that the orator is barred by the action brought on the note, which, they say, amounted to an election of his remedy. True it is, that you cannot affirm and *151
disaffirm the same voidable contract. White v. White,
In the circumstances the doctrine of election of remedies will not avail the defendants.
Decree affirmed and cause remanded.