90 Vt. 130 | Vt. | 1916
The record does not show that the demurrer in the answer of defendant Avery was brought forward for hearing before the ease was heard on the merits, so the demurrer stands as waived. Congregational Church v. Cutler, 76 Vt. 338, 57 Atl. 387.
The amendments to the bill were within the discretion of the chancellor. Some exceptions were taken to rulings on questions of evidence, during the hearing upon the merits, but it does not appear that any exceptions were taken to the report because of such rulings. These questions are therefore not before us. This is so by statute, (P. S. 1268,) in construing which it has been held in many cases that unless saved by exceptions filed to the report, such questions shall be treated as waived. The latest ease in which such holding was had, is Hooker, Corser & Mitchell Co. v. Hooker, 89 Vt. 383, 95 Atl. 649.
In his answer to the bill, Luther J. Higgins, the husband of Lelia M., stated that he had no interest in said real estate, and leaves the plaintiff to his remedy against her. This amounted to a renunciation by him of his marital rights in the property, in consequence of which the sole mortgage deed of the wife to the plaintiff to secure a part of the purchase money, conveyed an equitable interest in the land, — it constituted an equitable mortgage thereon. Frary v. Booth, 37 Vt. 78; Buchanan v. Chamberlin, noticed in case last cited, p. 84; Dietrich v. Hutchinson, 81 Vt. 160, 69 Atl. 661; Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184. Avery assisted Lelia M. in creating this equitable mortgage as a first incumbrance upon the property, and he agreed that the mortgage given by her to him, on the same premises, at the same time, should be a second incumbrance. Thus having full knowledge of the plaintiff’s prior equitable mortgage, Avery can have no rights in the property, either by virtue of his equitable mortgage or under his attachment, except such as are subject thereto. Dietrich v. Hutchinson, cited above; Frary v. Booth, cited above; Morrill v. Morrill, 53 Vt. 74, 38 Am. Rep. 659.
Decree reversed and cause remanded with directions that a decree he entered that unless the defendants pay to the clerh of the court for the benefit of the plaintiff, the sum due in equity with interest thereon from the date of the decree, together, with the costs of suit in the court of chancery, less the• defendants’ costs in this Court, within a reasonable time to he fixed by that court, the defendants and each of them, and all persons claiming under them, shall he forever barred of all equity of redemption in the premises.