21 Vt. 280 | Vt. | 1849
The opinion of the court was delivered by
This farm being, at the time it was sold by Henry A. Allen to Griggs, incumbered by Mr. Thrall’s attachment against Oliver Allen, it was provided in the note now in question, that Griggs should retain that amount of the purchase money for the farm in his own hands, as a security against Thrall’s attachment;
It is alleged in the bill, that Griggs, and those claiming under him, have always remained in the quiet and peaceable possession of the entire farm, and that Thrall has never taken any measures to get into possession under the levy of his execution, and that, upon application, he refuses to release his claim of title to Griggs. Thrall does not answer these allegations in the bill, but simply sets up his claim of title in his answer. Though the orator has the title to the note in question, yet he cannot enforce it against Griggs, so long as his title is incumbered by Thrall’s attachment and levy against Oliver Allen. This note is effectually locked up, and has in fact remained so for years. At law it must remain in that situation, so long as it shall please Thrall to let his claim of title sleep. The orator’s right to enforce payment of the note is dependent upon Thrall’s title ; and it would be a reproach to the law, if the orator had no means of determining, whether there is any value in his note. To determine this, the validity of Thrall’s title must be tested. If a man have an equitable right, chancery will find means to give-Mm relief.
This case, though probably new in its facts, yet calls for no new principle of chancery law, but simply for the application of a well known and long established principle to a new instance. The orator has in equity an interest in the title to that portion of the farm, which Thrall has levied his execution upon, inasmuch as the value of his note is dependent upon that title; and his interest must awa-it the result of the title claimed by Thrall. So long as this cloud is hanging, over Griggs’ title, he is protected from the payment of his note; and this operates to the injury of the orator, and consequently the orator has an interest in having the title settled; and we think, especially in a case like this, the orator must have the right to come into chancery to compel a settlement of the title.
If Thrall expects to assert his title, he has been guilty of gross delay. It is now some seven or eight years since his levy, and no
The result must be a reversal of the decree of the chancellor as to Thrall, with costs in this court, and the cause be remanded to the court of chancery, with instructions that that court enter a decree against the defendant Thrall, requiring that he shall make his election to commence and prosecute, either at law, or in chancery, a' suit to final judgment, to settle his title to that portion of the farm covered by this defendant’s levy against Oliver Allen, by some short day to be fixed by the chancellor; and if he shall neglect or omit either to commence a suit, or prosecute it to final judgment, by the time fixed by the chancellor, or if, having elected to commence such suit, shall fail to establish his title, then, upon either event, the chancellor to decree, that said Thrall convey by a valid quitclaim deed, duly executed by him, all the right and title, which he acquired to the premises by means of his attachment and levy against Oliver Allen, to Samuel Griggs, his heirs and assigns, in fee, by some time to be fixed by the chancellor, and be perpetually enjoined, both in law and in chancery, from setting up any title thereto under his said attachment and levy, under such penalty, as the chancellor shall prescribe; and the decree of the chancellor as to Griggs is reversed, — the chancellor to retain the bill to await the result in relation to the establishment of Thrall’s title, and, if not established, to pass a decree according to this mandate; but if established, the bill to be dismissed.
