52 Vt. 29 | Vt. | 1879
The opinion of the court was delivered by
From the referee’s report it appears that the intestate sold certain real estate and took a mortgage from the purchaser to secure the payment of part of the purchase money. The mortgagor subsequently sold the same premises to the plaintiff, the plaintiff agreeing to pay the amount due on the mortgage as a part of the consideration of his purchase. Subsequently the plaintiff sold the mortgaged premises, and the intestate foreclosed his mortgage, and was obliged to take the premises on the mortgage. It is found that the premises were of less value than the amount of the mortgage debt. After the decease of the intestate the plaintiff presented and was allowed a claim against the estate of the intestate, and the estate presented in offset to the plaintiff’s claim the deficiency in the value of the premises received on the foreclosure to pay the mortgage debt. It is found that such deficiency is more than the sum allowed the plaintiff against the estate. The contention is, whether the estate can avail itself of, and be allowed, this deficiency in offset to the claim allowed the plaintiff. The referee has found that, at the time the plaintiff purchased the mortgaged premises, he agreed with the mortgagors to assume and pay, “ as a part of the purchase money,” the sum due on the mortgage, amounting at that time to the sum of $5,357.73, and that the intestate assented to the same. If this finding be construed to mean that the plaintiff’s promise to pay the sum due on the mortgage debt was to Wilson and wife, and not to the intestate, it was for the benefit of the intestate as well as the indemnity of Wilson and wife, and for that reason he might avail himself of it in equity, where the substance rather than the form of the transaction is regarded. By the statute, the commissioners on the estate of Warner were charged with the power and duty of ascertaining and allowing all claims against the estate, and all claims in offset to such claims in favor of the estate, without regard to the legal form in which such claims would have to be prosecuted in a court of common-law jurisdiction. The probate courts have
This view of the principles of law applicable to the facts reported, is determinative of this case, without considering the question over which there is such a conflict in adjudged cases, and which has been so elaborated by the counsel, as to whether the intestate might have maintained an action in a court governed by the technical rules of the common law against the plaintiff on the facts reported.
Judgment affirmed.