45 Vt. 512 | Vt. | 1873
The opinion of the court was delivered by
The defendant has demurred to the orator’s bill, and insists that the same is insufficient by reason of lack of substance and lack of parties. The orator, we think, not in the most approved form, nor with the greatest clearness and explicitness, but in substance, has set forth that he claims the right to have the water from the spring named, situated on the remainder of the Burke farm, so called, flow through the aqueduct to the house which he purchased of Jay Wilson, by virtue of the conveyance of such a right to him in the deed of the premises ; or, at least, that he purchased and paid for such a right at the time he purchased and paid for the house and acre of land, and went immediately into the possession and enjoyment of the same, and had so continued to the time of bringing the bill; so that the subsequent purchasers of the remainder of the Burke farm, on which the spring and part of the aqueduct were located, were put upon inquiry that he claimed some right to the spring and aqueduct, and were thereby charged with all .the knowledge which the inquiry, if made, would have put them in possession of, as to the rights which he claimed in and to the spring and aqueduct. We think any one so disposed, upon a careful reading of the bill, would fairly understand that the orator claimed a right in and to the spring and aqueduct in both of the ways named ; so that the
Every person, who, from the facts stated in the bill, is necessarily interested in the result of the suit, or who has rights in the subject-matter to be protected, is a necessary party to the bill. If the deed from Jay Wilson to the orator, conveyed to the orator the right to take the water from the spring, through the aqueduct, to the dwelling-house conveyed by the deed, Jay Wilson has, and can have, no interest in this controversy, inasmuch as he then owned the remainder of the Burke farm, so that he had the right to make the conveyance, and has since parted with all his interest in the same. On general demurrer, the bill is sufficient in regard to parties, if the facts stated disclose one ground on which the orator is entitled to relief without additional parties. No claim is made that any additional party to the bill is required, unless Jay Wilson is such.
To the ground for relief first above stated, as we have seen, Jay Wilson is not a necessary party. Hence we think the orator’s bill is sufficient as against the defendant’s general demurrer.
The defendant further insists that the foreclosure of the mortgage on the remainder of the Burke farm, given by Jay Wilson to Daniel Owen, and to which the orator was made a party, is a bar to any right which the orator might have had to the spring and aqueduct. The foreclosure of this mortgage is admitted in the manner stated in the defendant’s plea in bar, by the orator’s demurrer thereto. At the time that mortgage was given, the orator had obtained whatever right he had to the spring and aqueduct, and was in the possession and enjoyment of the same. Wilson could and did by that deed, convey to Owen only what right he then had in the remainder of the Burke farm, and that was all Owen could acquire by the foreclosure of the mortgage. The foreclosure of the mortgage terminated the equity of redemption which Owen had in the mortgage premises ' at the time he executed the mortgage. By making the orator a party to the foreclosure of the mortgage, Owen obtained whatever right the orator might have acquired in Wilson’s equity of redemption in the mortgaged premises subsequently to the exe
The defendant further insists that the court was in error in granting a final decree on the state of the pleadings. If the defendant had elected to have treated the decree of the chancellor as interlocutory, and had asked the chancellor for leave to withdraw his demurrer, and to be allowed to answer the bill on its merits, and the chancellor had denied him that right, the question now attempted to be raised by the defendant, would have been properly before this court. The defendant has elected to treat the decree as final, and has brought the case here on an appeal. We think, as the case stands, the defendant is not strictly entitled to claim that the chancellor was in error in granting a final, instead of an interlocutory decree.
The decree of the chancellor is affirmed, and the cause, remanded, with leave to the defendant to apply to the chancellor to be allowed to withdraw his demurrer, and to answer the bill on its merits.
