59 Vt. 96 | Vt. | 1886
The opinion of the court was delivered by
The allegations in the bill come to this in substance and effect: That the defendant, Scribner, on March 11, 1882, pretending to be seized and possessed of a farm, bargained and conveyed it to the orator by deed, containing, the usual covenants of a warranty deed, for the consideration of |2,500, and received $1,000 of the same and a note for the balance; that within a few days thereafter the orator found that at the time of the conveyance Scribner had leased the farm to one Harvey until the following January, and had agreed to convey the same to him upon payment of a certain sum before the lease expired; that Harvey was then in possession, claiming all his rights under his lease and said agreement, and refused upon the demand of the orator to yield the possession, and has retained it ever since; that Scribner refused to give possession to the orator or return said $1,000, and give up said note, and to receive a deed from the orator ; that the orator intended to take immediate possession of the premises, and use the iarnrfor his.own purposes.
Talcing these allegations to be true, ás we must under the demurrer, the orator was hindered and prevented from entering, and was kept out of possession by one having a better right. Although technically there was no eviction, because eviction means an entry and expulsion, yet it is settled that on the covenants for quiet enjoyment, and a fortiori, on the cove
The same author further says, page 676, 3d ed., that where the purchaser has a present right to damages upon his covenants, which occur when there has been an eviction, the quia timet jurisdiction of equity “rests on familiar principles.” Some cases go further and hold that an eviction is not necessary, but Rawle concludes to the contrary and cites the authorities on page 684.
This bill was not carefully drawn, but we think it warrants the construction of negation of knowledge by the orator of the encumbrance of Ilarvey. It also points by strong implication to fraud in the sale by the defendant. It shows a prompt demand of rescission of the whole transaction on the part of the orator.
We think the bill was' sufficient to warrant the assumption of jurisdiction by the Court of Chancery.
Another ground of demurrer was that the Harveys were improperly joined as defendants. The demurrer was by Scribner and not by the Harveys, and was put on the ground of multifariousness.
The first decretal order overruling the demurrer and ordering the defendant to answer the bill was correct. lie might have insisted on a decree in form and in fact final, and taken an appeal therefrom ; but, instead, he answered without appealing at that term, and the cause, in the usual course, was referred to a special master, and came up at a subsequent term for hearing on his report, and a decree was thereupon passed for the orator, from which the defendant Scribner apj^ealed. We have treated the case as the defendant’s solictor did in argument, as though the bill stood for consideration under the demurrer. The rule is that if a defendant answers to- any part of a bill to which he has demurred he waives the benefit of Hie demurrer,—Mitf. & Ty. Eq. Pl. 304; and the question arises here whether that rule does not apply to this case, especially in view-of our statute, wherein it is provided that: “A party complaining of the final order or decree of the Court of Chancery may, by a written motion filled at the tern in which such order or decree is made, appeal therefrom,” etc. R. L. s. 771; and see Gove v. Dyke, 14 Vt. 561; and Hall v. Lamb, 28 Vt. 85.
The view above taken of the bill renders it unnecessary to pass on this question ; but we state it simply for the purpose of saying that we do not pass upon it expressly or by implication. The master reports the facts as alleged in the bill, but with much more sharpness and completeness, and makes a case clearly for equity jurisdiction. The fraud element is brought out with distinctness. Scribner by showing to the orator the leases which showed on their face they had expired, and also all right thereunder in the lessee unless he had made payment
As against him the orator was put upon no inquiry by Harvey’s possession. lie had the right to rely on Scribner’s representations and his covenants.
We find no error in the ridings on the motion to re-commit the report. The defendant filed exceptions to the report, and moved that it be re-committed, and it ivas, and amendments were made, but the record shows no further exception or motion or ruling of the chancellor in that behalf.
Decree affirmed and cause remanded.'