37 Vt. 297 | Vt. | 1864
The defendant, on the 24th March, 1856, executed to the plaintiff a mortgage deed, with a condition securing to him his support and maintenance during his natural life, and the fulfillment of other provisions for his benefit in connection with such support. This mortgage deed conveyed a farm of land which had been on the same day conveyed by the plaintiff to the defendant. The condition of defeasance contained in the mortgage deed also contained a further provision expressed in these words, viz : “Or, if I” (defendant) “shall have an opportunity to sell said farm and shall wish to do so, I shall have the right to do so by paying or securing to the said Weeks” (plaintiff) “such sum and in such manner as the judge of probate for the district of Caledonia, for the time being, shall consider will be just and right for the remainder of the life of the said Weeks from such date.” In January, 1861, the judge of the probate court for the district of Caledonia, on the application of the defendant, and on notice to the plaintiff, proceeded to hear the parties in reference to the subject of this provision, and made a decision and award in writing, directing that the defendant should, in the place and stead of the stipulations and provisions contained in the mortgage deed, pay to the plaintiff, during his natural life, the sum of one hundred and thirty dollars ' each year, at the Bank of Caledonia, in Danville, in two half yearly payments, one to be made on the first day of July and the other on the first day of January in each year, and the first payment to be made on the first day of July, 1861, and that the defendant should, within sixty days from the date of the award execute and deliver to the plaintiff a bpnd,.with one
The conditions upon which the judge of the probate court was authorized to act, in ascertaining and awarding in respect to a substituted performance of the condition of defeasance were, that the defendant should have an opportunity to sell the farm, and should wish to do so. No question is made in respect to the existence of a desire op the part -of the defendant to sell the farm, at the tipie when
We find nothing in the case showing that the plaintiff consented to the award, or that he should be held as estopped from resisting it. The bill of exceptions states that his counsel, at the time when the award was made, said in his presence that “ they were satisfied, and had come out better than they had expected.” But this is a mere detail of evidence tending to show the fact, and is not a finding in respect to the fact itself; and we do not think that the plaintiff’s silence when this remark was made, was equivalent to such an acceptance of the award as would change his rights under the mortgage.
These conclusions necessarily lead to a reversal of the judgment for the defendant in the action of ejectment. But it very distinctly appears that the defendant has fully complied with the requirements of the award in respect to the substituted performance which the award provided for in the place of the condition of the mortgage, and we find no reason to doubt his good faith in believing the award to be valid and binding. His breach of the condition of the mortgage is therefore to be regarded as unintentional, or purely technical ; and a court of equity would relieve him from a forfeiture of the estate on such terms as would provide for the plaintiff a full compensation and indemnity for all which he has lost by reason of the breach complained of. Austin v. Austin and Raymond, 9 Vt. 420 ; Henry v. Tupper et aL, 29 Vt. 358. In making such a compensation to the plaintiff for the damages occasioned to him by the breach of the condition of the mortgage as would be just and equit
The only questions which are now made by the plaintiff in the action on book account relate to the items of his account against the defendant numbered from 9 to 12, inclusive, and to his account against the defendant contained in the paper marked E. Thfese are charges for money paid for keeping and shoeing the plaintiff’s horse, and for repairs on the plaintiff’s wagon, which, as the plaintiff claims, it was the duty of the defendant under the condition of the mortgage to defray. If this claim is well founded, it would give the plaintiff no right to make a charge on book account against the defendant for what is, in substance a breach of the condition of the mortgage, and these items cannot be considered as proper subjects of book account on any hypothesis which the plaintiff suggests. They were properly disallowed by the county court. In respect to the account contained in the paper, marked E., the auditor reports that the whole of it, except á singly'item, “accrued more than six years ago, without credit or a new promise,” and that the defendant claimed that it had been settled, and that he relied on the statute of limitations as a defence against it, and the auditor further states that he did not examine the merits of the charges, “especially as they were not insisted on by the plaintiff’s counsel.” No question arises on the auditor’s report in respect to the excepted item. The statement of the auditor that the account “accrued more than six years ago” must be regarded as lacking precision and certainty in respect to the time when it did in fact accrue, and leaves the question in doubt. The expression, literally interpreted, would imply that it accrued more than six years before the making of the report, and this would not be sufficient to show that the account was barred by the statute. To make the statute of limitations applicable, it should appear that the account accrued more than six years before the commencement of the action. Ve have not thought it necessary to send the report back to the auditor for an amendment or a more specific finding in this particular, inasmuch as we regard the plaintiff’s claim for these charges as controlled by the finding that they were not seriously