| Vt. | Feb 15, 1844
The opinion of the court was delivered by
This is an action of ejectment. A verdict and judgment were rendered for the plaintiff in the county court, and the defendant filed a motion to redeem, which was overruled. The plaintiff's title accrued from an indenture between him and the defendant, dated October. 14, 1837, and it becomes necessary for us to decide what estate, or right, each of the parties had by virtue of that indenture, since the estate, rights and duties of both were derived from it. It is our duty to give such a construction to it, as will give effect to the whole and every part, if it can be done by legal principles. Whatever obligations devolved on either, by the covenants therein contained, are to be taken favorably for the party to whom the obligation is to be performed. And we should not give it such a construction, if it can be avoided, as to make the different parts of the instrument at war with each other. The intent is to be sought for from the instrument itself; and though we may conjecture the meaning of the parties aliunde, yet, if they have not made use of proper and appropriate terms to express that meaning, the court cannot supply them.
1. By this instrument Dunklee, the defendant, conveyed to the plaintiff, Olcott, an estate for the joint lives of himself and his wife, and the life of the survivor of them. This gave the plaintiff and his wife an estate of freehold, though not of inheritance, the reversion of which remained in the defendant. The expressed consideration of this conveyance was two thousand dollars.
2. He stipulated that he would, at his own expense, labor, carry on, occupy, husband and farm the same,, and every part thereof, without'sale or transfer during the term.
3. That he would, from the avails and income of the farm, pro
4. The defendant, Dunklee, was to keep two cows and ten sheep summer and winter, their calves and lambs, and to keep the number good; he was also to keep a one horse, wagon, and cutter, &c., — but was to have the privilege of using them in his family and business, when not wanted by the plaintiff, — cows, sheep, furniture, &.C., to be the property of the plaintiff and his wife during their lives, and at their decease to revert to and become the property of the defendant; and if the plaintiff should see fit to dispose of the horse, the defendant was to keep one of his own for the use of the plaintiff.
5. In consideration of receiving certain stock, &c., of the plaintiff and one Ober, the defendant agreed to pay the plaintiff’s debts.
6. There was a provision "that the defendant should furnish the plaintiff with spending money, doctoring, nursing, &c.
7. The defendant covenanted that the plaintiff and his wife might live in and occupy the house, in which they then lived, during the term, and that he would furnish them with wood cut for the fire. It is not stated where the house was situated, — whether on the farm or not. It probably belonged to the defendant, or the stipulation was unnecessary.
8. If the plaintiff and his wife should relinquish the several articles of produce, to be furnished by the defendant, and become unable to do their own labor, the defendant was to support, take charge of, and maintain them.
It is to be noticed that all the direct covenants are on the part of the defendant, excepting that wherein the plaintiff agrees to return the overplus of the produce furnished, if not all used, and that wherein he agreed to let the defendant have the use of the horse and wagon, &c. These are the principal parts of the indenture, which require our attention. In a deed of indenture, signed' by different parties, each is to be considered as only the covenant of the person who is to perform the obligation, and his language, and cannot, in
There is no difficulty in this casejn discovering what the parties intended. Whether they have effected that intention is more questionable. If we call the estate of the plaintiff a mortgage, there is wanting those terms by which such an estate is usually created,— as, upon condition, provided, &c. If we call the estate of the defendant that of a lessee, there is also wanting those terms of art, by which estates of that kind are demised 5 and, moreover, there is no clause of re-entry, without which an ejectment cannot be maintained by the lessor. Without such a right in the plaintiff, and if he has no other security, or remedy, except an action upon the covenants, the grant of the estate from the defendant to the plaintiff is inoperative, and of no avail, and should not have been inserted in the indenture.
To obviate these apparent difficulties, the defendant contends, that, the defendant owning the estate of inheritance, the life estate of the plaintiff is surrendered by the' indenture to the defendant. The effect of this construction would be to declare that the very instrument, which created and gave to the plaintiff an estate of freehold for the joint lives of himself and wife, destroyed that very estate. This clearly could not be its legal effect. All these objections, however, are not insurmountable. The plaintiff acquired by the indenture an estate for life. The defendant, as incident to his covenants, and to enable him to perform the same, had a right to the occupancy of the premises ; since, without such occupancy, he could not perform them.
It may be considered, then, either that the defendant granted to the plaintiff an estate for the lives of himself and wife, conditioned that he should perform the covenants, and that the indenture was quasi 'a mortgage, and that, although the words upon condition are not inserted, yet, in order to effect the intention of the parties, those words may be understood, — in which case the defendant would be entitled to retain the possession until condition broken, — that is, so long as he performed the covenants; — or it may be considered that the plaintiff, having an estate for life in the premises, yielded the possession to the defendant, as incident to his covenants and to enable
The next question, which arises, is, whether the defendant was entitled to redeem. The statute upon this subject is, that, if the plaintiff claims by any deed of mortgage, or deed of bargain and sale with defeasance, the condition of which has not been performed, the defendant may file his motion to redeem, &c., and the court shall ascertain the sum equitably due, and, if a part is not due, may permit a redemption at any future period, or periods, by instalments. This statute, it has been decided, applies only to a technical mortgage, — Miller v. Hamblet, 11 Vt. 499" court="Vt." date_filed="1839-07-15" href="https://app.midpage.ai/document/miller-v-hamblet-6572225?utm_source=webapp" opinion_id="6572225">11 Vt. 499,— and when the court, from want of equitable powers, cannot ascertain the sum, or give effect to the statute, they ought not to attempt it, at the hazard of doing injustice.
In neither of the views, which have been entertained of the nature and effect of the indenture, can the court entertain the motion to redeem; and though a compensation for past support might be ascertained and fixed in a court of equity, — as was done in Austin v. Austin et al, 9 Vt. 420" court="Vt." date_filed="1837-02-15" href="https://app.midpage.ai/document/austin-v-austin-6571968?utm_source=webapp" opinion_id="6571968">9 Vt. 420, — yet even the powers of a court of equity would be baffled, in endeavoring to ascertain what would be the future annual value of the services required of the defendant by the indenture ; and clearly a court of law have no such power.
If the defendant can relieve himself from the consequences of a forfeiture for not performing his covenants, and regain the possession, he must resort to a court of equity. He is not entitled to any redemption at law, under the .statute. The judgment of the county court is therefore affirmed.