42 Vt. 562 | Vt. | 1870
The opinion of the court was delivered by
The allegations in the orators’ bill are very meagre, and if its sufficiency were under consideration upon demurrer, it might be found to be wanting in some essential particulars, but the defendant has answered it fully, and answered it in the aspect, in which it was intended to have been brought, and testimony has been taken on both sides with reference to issues made upon the answer in that aspect and a final decree made without any question as to its sufficiency having been made in the court of chancery. Under these circumstances it is too late to raise this question here. It is insisted by the defendant that by the laws of
Although this is essentially a bill to redeem, it is somewhat in the nature of a bill-for specific performance, and as the whole litigation has grown out of the defendant’s denial of the orators’ right to redeem, and the orators have prevailed in the controversy, the ordinary rule that the costs of the proceeding for redemption are
The result is that the pro forma decree of the court of chancery, dismissing the orators’ bill, is reversed and the case is remanded to that court, with a mandate that an account bo taken under the direction of that court, of the money paid by the defendant for the orator, James II. Hills, on account of the premises in question, and of the money received by him from the orators, and of the amounts received by him from the premises in money or otherwise, and the balance in favor of the defendant ascertained, with interest upon it to the time of making the final decree, and that a final decree bo entered for the orators, that upon the payment by the orators to the clerk of that court, for the use of the defendant, of the balance found duo the defendant at the time of the decree, after deducting therefrom the orators’ costs of this suit, within some time to be fixed by that court, the defendant make proper conveyance of the premises to the orator, Jamos H. Hills, and ho perpetually enjoined from setting up any claim to the premises, and that in case the orators fail to make such payment within the time limited, the orators’ bill be dismissed with costs.