59 Vt. 232 | Vt. | 1886
The opinion of the court was delivered by
In order to understand the questions presented, it is necessary to refer to the pleadings. The oratrix in her bill, after alleging her ownership of the thirty acres of land therein described, and her sale to the defendant Eock of the hemlock bark and timber on one acre of the same, and the transfer of the title Eock acquired to the defendant Eeneau,
The bill as to the defendant Rock was dismissed with costs. The other defendants answered the bill, and claimed title to the timber and bark under the purchase made from Rock. They did not claim that the Court of Chancery had not jurisdiction of the parties, or of the subject-matter, or deny that the cutting and removal of the timber would be an irreparable injury to ■ the oratrix if it should be found that it was her property. The case was referred to a master to find and report the facts, and upon the hearing before him a motion was made to dismiss the suit for the want of jurisdiction. That motion was so far disregarded by the master that he proceeded with the hearing and reported the facts found by him. The motion was not renewed in the Court of Chancery, and the jurisdictional question was not otherwise presented in that court than as appears in the report of the master. The chancellor was not called upon to decide the question without an appropriate plea, or a motion filed in that court. Making a motion before the master was not the proper way in which to raise the question. The master had nothing to do with the jurisdictional question.- It was his duty to find and report facts, and upon his report being returned to the Court of Chancery a motion to dismiss filed in that court might be predicated upon the report. The application for leave to amend the answer so as to present the question is of no avail to the defendants, as it does not appear that it was based upon any ruling made upon such a motion by the chancellor. The court might, therefore, be justified in treating that question' as waived ; but treating it as properly hero, we hold that the court had jurisdiction.
That a court' of equity may interfere to prevent such' threat-
“ South Nbwuuiiy, Yt., Aug. 23d, 1881.
“ I, the undersigned, have sold to David Roc, and received payment in full for the hemlock bark, timber and wood on one acre, more or less (within the bounds of the hemlock timber).
Ruth R. Smith.”
The defendants claim that this writing is the only evidence receivable of the sale, and that it should bo construed as embracing all the timber within the bounds of the hemlock timber.
In view of the fact that neither Rock or the defendants understood that it should be so construed at the time they purchased, it would be inequitable to so construe it. We do not think that any such construction should be given to the paper. The addition of the words ‘ ‘ more or less ” should not have the effect to enlarge- the quantity before described, and the words ‘ ‘ within the bounds of the hemlock timber ” are descriptive of the locality from which the acre should be selected.
The other facts found by the master justified the decree that was rendered by the Court of Chancery, and it is affirmed and cause remanded.