Wheeler v. Willard

44 Vt. 640 | Vt. | 1871

The opinion of the court was delivered by

• Redfibld, J.

This case shows that the orator levied his execution upon and set off a fractional portion of the equity of redemption of Jonathan Lawrence, in certain premises in St. ■Johnsburv, on the 21st day of July, 1859; that such premises were at that time subject to mortgages to Ebenezer Woods and Lambert Hastings ; that said Lawrence conveyed, in trust for the benefit of his creditors, the same premises to Barron Moulton, on the 31st December, 1866 ; and said Moulton conveyed the same premises to John B. Woods, November 2d, 1857.

.Ebenezer Woods obtained a decree of foreclosure of his mortgage against Lawrence and wife, John B. Woods, and the orator, at the December term of Caledonia county court, 1860, which became absolute on the 4th day of January, 1862 ; and on the 4th day of December, 1861, the orator paid to the clerk of said court the full amount of said decree, and the clerk’s fees; which ho certified on the record to be “ a full discharge of said decree.” The said Lawrence and wife and John B. Woods conyeyed the same premises to defendant on the 6th of December, 1861.

Assuming the orator’s levy to be regular and valid, and operative to vest in the orator certain aliquot parts of the equity of redemption, the parties are each owners of a fractional interest in the equity of redemption.

I. The defendant insists that the levy was invalid for the reason that Lawrence, by his deed to Moulton, was divested, at the time of the levy, of all title or interest in the premises. But the deed to Moulton was voluntary, without consideration, and expressly in trust for the benefit of creditors, and the orator may rightfully claim that the deed was inoperative against him as a creditor; and, upon the proof in this case, we are not prepared to say that the orator did not acquire an interest, by his levy, in the premises, and stand in such relation that he might rightfully redeem.

II. By the payment of the decree of Ebenezer Woods, before it became absolute, the premises became redeemed, and the operation of the decree arrested. Although the payment of the money to the clerk was received, and certified by him to be a full discharge of the decree, yet a court of equity will ever, in such case, keep the mortgage on foot, and treat the transaction as a •purchase rather than payment of the decree, “ as may best sub-serve the purposes of justice.” Bullard v. Leach, 27 Ft., 491.

The party paying the decree becomes invested with the rights of the mortgagee and the assigneee in equity of the mortgage. Equity engrafts this provision upon the transaction" to prevent fraud and to subserve justice. And although the mortgage is in fact paid, yet equity will require it to subsist until every party, who owes a duty under the mortgage, shall have discharged it. The orator, standing in the relation he did, as owner in part of tbe equity of redemption, by "virtue of his levy, acquired the right, by the payment of the decree, to be treated in equity as the as-signee of the mortgage for the purpose of compelling contribution. But the payment of the decree stayed its operation, not only as against him, but also as against the co-defendants. The decree became cancelled as to the mortgagee, Ebenezer Woods, and the orator thereby acquired the right, as assignee in equity, to enforce contribution from the defendant in the ratio of his interest in the equity of redemption, and no more.

There is another reason why the orator cannot exclude the defendant from participating in the benefits from his lifting a burden from their common estate. They were tenants in common, and the purchase of an incumbrance upon the common estate would enure to the common benefit, and each become liable to his co-tenant to make his proportionate contribution. ■

III. The orator claims that the purchase of the equity of redemption by the defendant, while he was the solicitor of Ebenezer Woods, in procuring the decree, was wrongful, and that he ought not to be permitted to take any benefit from his purchase. The rule is well established, and founded on sound policy and clear principles of equity, that the client has the right to treat all acts of his solicitor, touching his interest, as done for his benefit; and often he may require an estate purchased by the solicitor to be held in trust for the client. But if the decree became annulled by the payment by the orator to the clerk, and his discharge of the same, there would seem no reason why Ebenezer Woods might not lawfully become the purchaser of the equity of redemption, without any infraction of the rights of the orator; and if so, there would be no wrong in the solicitor’s making the purchase.

IN. The sole ground of relief upon which the bill is predicated —and the orator must stand upon the case made in his bill — is the alleged contract of the deféndant to convey his interest to the orator for one hundred dollars.

Upon the proof the defendant’s interest would seem nominal, and the incumbrances the full value of the property.

The orator has conveyed the premises with covenants of warranty, relying upon, and in faith, as he alleges, of the defendant’s agreement.

' -The defendant admits that he offered to convey his interest to the'orator for $100, and afterwards for $50, ■which he says the orator rejected. The orator claims that he protested against the claim, but finally yielded to the defendant receiving' that sum, in satisfaction of his claim, from the rents of the premises. The defendant went into possession, and after receiving, for the use, something more than $100, he vacated the premises and notified the orator that his claim was satisfied, and that the orator might take the possession.

The defendant requested Moulton, who had become the owner of the Hastings mortgage, to hold the same ; that he might wish to pay it. He afterwards notified Moulton that he had concluded not to redeem, and referred him to the orator, and thereupon 'the orator paid the mortgage-to Moulton.

. Were this an ordinary case of a bill for specific performance of a contract for the conveyance of real estate, resting entirely upon parol evidence, and not certain and specific, we should deem .it unsatisfactory upon which to base a decree of that nature. But there is a character impressed upon this case by the evidence, which makes it evident that the orator conveyed these premises, with covenants of title, under the conviction and in the faith that defendant had distinctly abandoned all purpose of redeeming the estate, and waived all claim or title to the premises. The incum-brances were the full value of the estate. He fixed the value of his interest at $100. He surrendered the possession to the orator, after he had received in rent something over $100. He notified Moulton that he had abandoned the purpose of redeeming the premises. The acts of the defendant evince what the witnesses Brown and Harris say he declared in words, that “ Wheeler owned the placethat “ you need not institute proceedings against me, I have got what I claim out of the premises and the Dr. may have them. You may tell him to take the possession.” We are satisfied from the evidence and the history of this case, that the orator believed, and had good reason to believe from the acts and declarations of the defendant, that when he surrendered possession to the orator, he distinctly waived all further claim to the premises; and that, relying upon that, the orator sold the premises, with covenants of title, for a less sum than the incum-brances which he had paid. As the value of the estate has become enhanced, it would work a fraud upon the orator if defendant was now allowed to redeem. And this condition of the orator has been so far induced by the acts, declarations and conduct of the defendant, that he should now be estopped from asserting any claim to the premises.

The decree of the chancellor is reversed and remanded to the court of chancery with directions to enter a decree for the orator, perpetually enjoining the defendant from asserting any claim or title in or to the premises set forth in the orator’s bill, under or by virtue of the deed from Jonathan Lawrence and wife and John B. Woods to defendant, dated December 6th, 1861, and for his costs..