26 Vt. 624 | Vt. | 1854
The opinion of the court was delivered by
The former decree in chancery, which is relied upon as a bar to this suit, was in many, if not in all essential respects, founded upon the same matters which are embraced in this. "Whether the same relief could have been obtained in that case, as under this bill, we are not called upon to determine, as we are satisfied, that in any event, the decree in that case is no bar to this prosecution. From the record of that case, it appears, that testimony had been taken, and the case set down for hearing, and when called for trial, the plaintiff declined to have the iCase heard, or to proceed in the further prosecution of it; and thereupon the case was dismissed by the chancellor, with costs. That decree was not intended as a dismissal of the bill on its merits; as is evident from the fact, that the original decree was amended by the chancellor, and the amendment sustained by this court in the 22d Vt. 269, so as to rebut such a conclusion even by implication. We are to regard that decree, therefore, as containing. on its face, the order that the bill be dismissed with costs, for the ivant of an appearance and prosecution by the orator. Under such circumstances, the dismissal of a bill will be the same as a non-suit at law, and will be no bar to a subsequent bill for the same matter. In Welford’s Eq. Plea. 356, it is said “that an order for dismission is no bar, unless
The order of dismissal in this case as amended, is as follows: “ the said cause being called to be heard on its merits, the solicitor for the orator appeared and declined a hearing of said cause, and the said court thereupon did order and decree that .said bill be dismissed.” It appears, therefore, on the face of the decree, that the decree of dismissal was made, for the want of prosecution; and from the authorities, we are satisfied, that its effect is simply that of a non-suit at law, and is no bar to the prosecution of this bill, even if it is brought for the same matter.
In the investigation of the merits of this case, it is proper to observe, that at a former hearing in this court, the decree of the chancellor was in all respects affirmed, except as to the note of $600, given on the 16th of Márch, 1838, by James and Jirah Vaughn, to Mr. Thrall, payable on the 1st of April, 1839, with annual interest. A re-hearing on that matter was then ordered, to which, alone, our present investigation is to be confined. The validity of the assignment by Mr. Vaughn to Mr. Thrall of his claim against Dr. Porter, arising out of the purchase of “ Vaughn’s Patent Balance,” as well as the existence of a lien on that assignment and claim, for the amount due Mr. Thrall, from Mr. Vaughn, on the 29th of March, 1838, must be considered as settled by the decision of this court at that hearing. The chancellor allowed the sum of $1,127,66, as being the balance due Mr. Thrall from Mr. Vaughn at that time, including interest to the time of mating the report. In that amount was included the above mentioned note of $600 and the interest. Whether that note and interest, was properly allowed, is the question in the case.
We have no doubt, that the settlement between Dr. Porter and Mr. Vaughn, on the 29th of March, 1838, was intended to be, and was in fact, a full settlement of all matters arising out of the purchase and sale of that Patent Balance. The disputable character
The note, which was allowed by the master, was given before the settlement between Dr. Porter and Mr. Vaughn, and under their contract, Mr. Thrall has a lien upon the claim against Dr. Porter, for its payment; and this lien still subsists, unless it has been removed by facts which appear in the report of the master as well as in the several answers of the defendants.
This note of $600, was executed on the 16th of March, 1838, by Jirah and James Vaughn, and payable to Mr. Thrall on the 1st of April, 1839, with annual interest after it fell due. For this note, Mr. Thrall agreed in writing, if the same was paid when due, to convey to Jirah and James Vaughn, the shop and premises for which it was given. The Vaughns went into the immediate possession of the premises under a lease, therein agreeing to pay fifty dollars, per year as rent, if the note was not paid according to its tenor. These facts are distinctly stated in the answers of Mr. Thrall, and Mr. Vaughn, and are so found and stated in the report of the master. Mr. Thrall also further states, that the note was not paid, or any part of it, and that since the 1st of April, 1839, when the note fell due, and interest commenced running on the same, the Vaughns have continued in the use and possession of the premises under that contract and lease. Upon these facts, we think the note and the interest upon it, should not have been allowed by
Under these circumstances, the case falls within the principle decided in the case of Arbuncle v. Hawks, 20 Vt. 538, in which the court observed, “ That if the defendant chose to pursue the “ plaintiff for the price of the land, he should have done that; but “ when he takes possession of the land as owner, all claim upon “ the note is gone, and a contract once rescinded, cannot be restor- “ ed, except by consent of both parties.” The note, therefore, should not have been allowed as a subsisting claim, for the payment of which Mr. Thrall has a lien on the claim assigned to him
The interest on the note, for other reasons also, should not have been allowed. If Mr. Thrall, after resuming the possession of the premises, is permitted to receive the rent, and also to collect the interest on this note, he will thereby obtain nearly twice the estimated annual value of the premises. If the note had not been satisfied by that arrangement, it is obvious, that Mr. Thrall’s possession of the premises, and the reservation of rent to himself should at least have cancelled the interest.
The decree of the chancellor is erroneous, in directing a conveyance of these premises by Mr. Thrall, to Dr. Porter, on his payment of that note. Such should have been decreed, under those circumstances, if all the persons in interest, had beep made parties to this bill. The $600 note was executed by Jirah and James Vaughn, and the contract of Mr. Thrall was to convey the premises to them. James Vaughn has an equal interest with Jirah Vaughn in that contract; and as James Vaughn is not a party to this bill, no decree of that character could be made. The difficulty, that might otherwise exist in making a final decree in the case, is removed by the disallowance of the note and interest, from the report of the master.
The decree of the chancellor must be reversed, and the case remanded, for the purpose' of deducting the amount of the $600 note, and the interest which was allowed thereon, from the amount allowed and found due to Mr. Thrall. In other respects, the decree of the chancellor is affirmed.