Society v. Reed

42 Vt. 76 | Vt. | 1869

The opinion of the court was delivered by

Peck, J.

All this court can know from the exceptions as to what the county court decided, is,, that upon the evidence and facts therein set forth the court gave judgment for the defendant. Therefore, unless as matter of law upon the face of .the exceptions the judgment should have been for the plaintiff, we must presume the judgment of the county court correct.

In order for the plaintiff to recover on the ground of forfeiture, (which is the only ground relied on,) the burden is on the plaintiff to prove every fact necessary to work a forfeiture. What is relied on as producing this result is, that the defendant lias neglected for the space of six months after personal notice to pay an assessment on his pew. The notice required, from which the six months neglect is to date, must be actual, not constructive. It does not date from the time it was deposited in the post ■office, and at least not earlier than from the time the defendant received it. It does not appear that six months had elapsed after he had notice of the assessment before he called on Waite and ■offered to pay, when Waite refused to receive it. The case states that the notices or rate-bill were made January 21, 1865, and a ■copy of the one for the defendant is set forth; it also states that Waite at that time was directed to notify the owners of the pews •of the assessments. All we have to show when the notice to the defendant was even? put into the post office, except what he said to Waite July 25, is this statement: “These notices were directed to said pew owners, and deposited in the post office; the notice to the defendant'with the others.” It is not stated when the notices were put into the post office.

But at the interview on the 25th of July already mentioned, the ■defendant said he had received notice of the assessment. This, however, does not necessarily show that he received it six months before; this 25th of July being but four days over six months from the date of the assessment. It is not enough that the county ■court might have been justified in finding the fact that the defendant neglected for six months after actual personal notice; but it must appear that that court, from what was shown, was hound as matter of law to find that fact, in order to warrant this court in treating the fact as in the case. We can not presume that the county court found that the defendant had notice of the assessment six months before he offered to pay it, July 25, 1865. Without that fact there is no pretense of a forfeiture by the defendant of his title to the pew. Treating the six months neglect mentioned in the deed, as dating from the time the defendant may have received notice of the assessment, instead of postponing its commencement till the end of the thirty days when payable; and assuming that a demand by the collector was not necessary; and assuming that the plaintiff has done all on its part necessary to enable the society to treat the neglect of the defendant as a forfeiture, except in respect to notice in point of time, (neither of which questions do we decide,) the view already expressed results in the affirmance of the judgment. A forfeiture is matter of strict right, and is not to be helped out by any forced presumption.

The other questions, as to "the regularity and validity of the votes and proceedings of the society and the pewholders, the validity of the assessment, etc., we leave undecided.

The judgment of the county court is affirmed.