Swan v. Swan

55 Vt. 583 | Vt. | 1882

The opinion of the court was delivered by

Yeazby, J.

The decree of the chancellor was correct except in case of redemption by the defendant William, it would compel the defendant Harriet, or her interest in the farm, to pay a part of his debt. The renewal of the trouble between these defendants, who are husband and wife, resulting in a second separation, prevented the mortgage debts being paid as was contemplated at the time of the ante-nuptial contract. These mortgages belonged to the husband to pay. The intention was that the conveyance of half the farm to Harriet should settle and remove her lien thereon under her decree for alimony, but this lien was to continue until the mortgages were paid. Harriet has received only a small portion of her alimony, and still holds the title to one-half the farm. The orator holds both mortgages and has been in possession under them, taking the rents and profits since the spring of 1877, amounting to $200 per year. This bill is brought to foreclose, and the question is whether the whole or one-half of the rents and profits shall be applied on the mortgage debt; or stated in another form, whether the rents and profits of the wife’s half of the farm shall be applied. We think it should not, if the husband redeems. It was not her debt to pay. As against the husband, the deduction of rents and profits should be at the rate of $100 per year, instead of $200, as provided in the decree. If he does not redeem, then the deduction, for the purpose of fixing the amount of the decree as against the wife, should be at the rate of $200 per year, as stated in the decree. The decree was correct in providing that if she was compelled to redeem she should be subrogated to the rights of the petitioner against William, and may enforce the same against his half of the farm. When the mortgages are paid, her deed will operate a satisfaction of her decree for alimony. That was the intention of the parties and the fair import of the ante-nuptial contract.

Decree reversed and cause remanded with mandate.