Gordon v. Deavitt

85 Vt. 338 | Vt. | 1912

Watson, J.

The mandate from this Court (84 Vt. 59, 78 Atl. 113) directed that the homestead be set out in accordance with the provisions of the statute, and that the remainder of the premises be appraised, and that the defendants pay for the benefit of the orators the amount of said appraisal, or a part thereof equal to the amount of the redemption, payment and interest, with costs, by a day to be fixed by said court, or be foreclosed. These directions were obligatory upon the court of chancery, and proceeding under them, it was not within the power of that court to allow further proceedings on the merits involved in the main issue determined on the demurrer. This being so, the refusal by the chancellor to permit defendant Deavitt to file answer was not error. Sheldon v. Clemmons, 82 Vt. 169, 72 Atl. 687.

It is further urged that it was error not to refer the cause to a master, or to have a hearing before the chancellor, to ascertain, the sum due in equity. But such a reference or hearing (certainly without request, and none is shown in this case) was unnecessary; for the amount of the redemption payment was a matter of record in the case, and to find the interest thereon was a mere matter of computation. It is said however that the rents and profits of the mortgaged premises should have been taken into consideration in fixing the sum due in equity. It is not claimed that the orator has had any of the rents and profits, and the claim that the oratrix has is without foundation. Before and at the time of the foreclosure proceedings on the bank mortgage, Truman R. Gordon, the husband of the oratrix, was, and ever since has been, in possession of the entire premises, and occupying the same with his family. The oratrix, a party defendant in that case, paid the decree within the period allowed therefor, to protect her homestead interest. This payment had the effect to arrest the operation of the decree as to all the defendants, of whom Truman R. was one (Wheeler v. Willard, 44 Vt. 640; Phelps v. Root, 78 Vt. 493, 63 Atl. 941), but it did not have the effect to put the oratrix into possession of the premises. It follows that the rents and profits could not properly be considered in the assessment of the sum due in equity.

The points in defendant Deavitt’s brief not in effect covered by the foregoing holdings, are without any stated grounds or reasons, and not 'supported by argument. The Court will not search for grounds upon which to reverse the decree.

• Decree affirmed and cause remanded. Let a new time of redemption he fixed.