54 Vt. 575 | Vt. | 1882
The opinion of the court was delivered by
The first question made is as to the construction of the mandate. The orator claims that .the words, “ after deducting all indorsements,” relate as well to the notes owned by the defendant James Maynard as to the notes belonging to the orator ; while the defendants claim that said words relate only to the notes belonging to the orator. The mandate is a little ambiguous on its face in this respect; but in view of the fact that the Judge who drew it was the Chancellor who made the decree, whereby the construction claimed by the defendants was given to it; and in view of the further fact that the payments made and indorsed on three of the notes owned by said Maynard, as found by the master, were made and indorsed under such circumstances that equity would not apply them in reduction of said notes, but would treat them as payments towards the purchase thereof, — we hold that the construction contended for by the defendants is the correct one.
It is claimed that said Maynard should account for rents and profits from November 10, 1875, the time when Cutting and wife went into possession of the mortgaged premises. But they did not go into possession thereof under Maynard, but under Libby, who, being “ hard up,” conveyed the equity of redemption to Mrs. Cutting, and Cutting “ stepped into Libby’s shoes.” Maynard never claimed nor received any of the rents and and profits,
But when Maynard conveyed the premises by warranty deed to Mrs. Cutting on May 29, 1880, he must be deemed thereby to have taken possession, or to have done an act equivalent thereto, and to have asserted his superior title in such a manner as to prevent the orator’s taking possession; and he must account from that time, and will be allowed for all necessary repairs from the same time. The master reports nothing for necessary repairs since that time except an item of five dollars for digging about twenty rods of drain from the house in the summer of 1880, which he finds was a necessary expense. ■
Decree reversed, and cause remanded, with mandate.