56 Vt. 405 | Vt. | 1883
The opinion of the court was delivered by
This is a bill to redeem certain mortgaged premises now in the possession of the defendant Walbridge as mortgagee, and encumbered by a mortgage executed by Walbridge to defendant Chase.
The right of redemption as against Walbridge is conceded; and the master reports that Chase took his mortgage with notice of the orator’s equity, and thus the right of redemption exists in favor of the orator against him. The question in hand is, what shall the orator pay as the price of redemption ?
Hill & Walbridge were sureties for the orator bn sundry notes to various banks, and to indemnify his sureties, the orator, August 29, 1876, executed to them a quit claim deed of the premises in question. This deed, though absolute in form, was in fact a mortgage, and an equity of redemption under it, remained in the orator, to all intents and purposes, as complete and perfect, as though it had been in form a mortgage.
Hill & Walbridge failed, and, among other conveyances in the adjustment of their affairs, in the fall of 1876, conveyed the premises in question to Ingalls, in trust for their creditors;— Ingalls, however, taking such conveyance with notice of the orator’s equity. Tn the spring of 1878, the orator was notified that Ingalls was about to sell said premises, and that the orator could have them for $100. The orator declining to purchase, Walbridge, his co-surety Hill having died, procured one Tilton to take a conveyance and pay $100, Walbridge furnishing the money. This conveyance was on April 23, 1878. This money was paid out for the orator’s benefit on his notes upon which Walbridge was surety, and for taxes.
Dec. 9, 1878, Tilton quit-claimed the premises to Walbridge,
From the master’s report it is apparent that the land was in no condition to yield any income, and could only be made valuable, by being burned over, grubbed and fitted for cultivation.
Walbridge, after the orator declined to take a conveyance from Ingalls and pay $100, (which the master finds was the value of the premises at the time) supposed, when Ingalls sold to Til-ton, and Tilton to him, that he had secured a good title to the land, and the orator’s equity of redemption was extinguished. Thereupon, in the belief that he had a good title, he went on and made permanent and valuable improvements upon the land, in the years 1879, 1880, 1881, and 1882. He cleared up the land, smoothed the surface, built fences, and erected a small barn. All his improvements were in kind and character, such as good husbandry required, such as alone made it valuable, and such as a prudent owner would have made. The orator knew of the improvements as they were from time to time going on, and made no objection thereto, and asserted no right or wish to redeem until the summer of 1881, when, through O. F. Harvey, lie communicated to Walbridge his desire to redeem.' In March, 1882, the orator offered to pay Walbridge $125, and called on him for a deed. A*- this time, and when Harvey interviewed Walbridge in 1881, the improvements had been substantially all made, costing Walbridge about $375, and enhancing the value of the premises as the master reports, $300.
Are these improvements chargeable to the' orator on redemption?
The general rule is conceded, that a mortgagee in possession without foreclosure cannot improve_the mortgagor out of his
When the mortgagee has been lulled into the belief that the right of redemption has been barred or abandoned, and the mortgagor, knowing, or having reason to believe, that the mortgagee supposes that he is the absolute owner stands by and sees the mortgagee make lasting improvements upon the land, in kind and character, such as the land in its condition and wants clearly requires, and which are obviously sanctioned by the usages of good husbandry and faithful stewardship, then the right to redeem will be burdened with the expense of such improvements.
This rule is well fortified by authority, and is securely grounded in reason and justice; and this case is one proper for its application. Decree affirmed.