28 Vt. 346 | Vt. | 1856
The opinion of the court was delivered by
This is an action of debt upon the decree of a court of chancery. It is settled in this state that, upon an ■absolute decree of a court of chancery, for the payment of money, an action of debt will lie. Thrall v. Waller, 13 Vt. 231. The only question in the present case is, whether this decree is of that- character.
It is a decree, in a case brought, it would seem from the recitals in the decree, to set up a lien upon certain premises, for the purchase money, in favor of the vendor, alleging also, that it was the understanding of the parties to the conveyance, and of Ormsbee, who subsequently received a deed, in trust, to carry out this understanding, as is alleged, that such lien should exist until the sum due from Slason to Manly should be paid. In the most favorable view of the case for the plaintiffs, it is a bill to foreclose a lien or parol mortgage upon the premises, to secure the payment of Slason’s notes to Manly, which had been transferred to Lathrop, before the suit in equity, but whether endorsed or not does n,ot appear. They seem to have been transferred in such effectual mode that no question was made in regard to the title of both plaintiffs to maintain the bill.
The final decree of the court of chancery is, that the defendants Slason and Ormsbee pay or cause.to be paid to the clerk of the court of chancery, $2,219.72, and interest thereon from the 14th day of April, 1849, on or before the third Monday of March, 1850, or in default thereof, that Manly shall hold the premises free from
It seems to us that this decree is, in terms, and in legal effect, the same, precisely, as the ordinary decree of foreclosure. The orators in this case, after the time had expired, it would seem, procured a judicial appraisal of the value of the land, so as to determine the price at which it was taken upon the debt. This is, I think, not uncommon in the English practice. It seems to be almost universal there to have a final and formal decree, quieting the title in the mortgagee, after the time limited in the first alternative decree has expired. The ordinary presumption perhaps is, that if the land is taken in this mode, nothing to the contrary appearing, it is in payment of the debt. And where it is of inferior value to the debt, it is no doubt competent to have the value determined by the court, at. the time, by proper proceedings. But we are unable to see how this alters the character of the decree. It is still no decree, in personam, for the payment of the balance of the debt. That question is not involved in the litigation. The only question then, involved, ordinarily is, whether the debt is a lien upon the land, or rather, whether the sum of money is a lien. For, it may be a lien upon the premises, and not be a personal debt upon any one. It may not have constituted a debt originally, the conveyance being upon conditión of the payment of a certain sum, giving the grantee an option whether to pay or not. Or, if a debt is originally created, as in the present case, the obligee, or promisee, may have covenanted not to pursue the debt against the debtor, leaving it a bare Ken upon the land; or, it may have become barred by the statute of limitations, and, in either case, it remains a charge upon the land, and may be pursued in the mode this was. And, if any such defense against the debt, as a personal obligation, had existed in this case, or in any other similar, it could not be urged in the proceeding for foreclosing the equity of redemption. And, in such case, as well as the present, the decree wiU be, or may be, in the usual form. We think, therefore, that
Judgment reversed, and judgment that the defendant’s plea is sufficient, and that the defendant recover his costs.
