65 Vt. 160 | Vt. | 1892
The opinion of the court was delivered by
This is a proceeding to foreclose a mortgage. The orator’s intestate in 1863 bargained a lot of land in the village of St. Johnsbury to the defendant, C. C. Pinard, and agreed to furnish him money to enable him to build a house thereon. May 23,1872, the intestate conveyed the lot and house, and took back a duly executed mortgage to secure the payment of the defendant’s promissory notes amounting to $2,500. June 22, 1885, these notes and the mortgage were given up, and a bottom mortgage taken to the Passumpsic Savings Bank to secure the’ payment of the defendant’s note for $1,000, and a second mortgage was given to the intestate to secure the payment to him of the defendant’s promissory note for $1,540. This suit is to foreclose the last named mortgage. The defendants filed a cross bill, claiming that usury had entered into the debt secured, and that payments had been made and not applied, so that the debt secured by the mortgage in suit had been overpaid, and praying that the estate account for such overpayment on the defendant’s note and mortgage to the savings bank. The cross bill was duly answered. The issues thus formed were referred to a master, who heard the parties and made his report. From the decree made upon the master’s report both parties appealed to this court. Both parties took exceptions to the master’s first and supplemental reports. The
I. The defendants, while admitting that the notes given in 1872 and in 1885 ordinarily import consideration, contend that the relation of the intestate to the defendants was of trust and confidence, of such a character that the burden rested on the orator to establish the consideration of the notes, and that the notes -per se did not import consideration. To establish this relation they rely upon the facts found; that the defendant and his wife were unable to read or write, much more than to write their names. It is not found that they were not possessed of ordinary faculties of mind, and ordinary memory and judgment in regard to property and its value. It is also found that the intestate was a business man and a lawyer ; that he professed friendship for the defendants, agreed to treat them fairly, and to keep accurate accounts of their transactions. These agreements are no more than the law always implies in dealings between the ordinary debtor and creditor. It is not shown or claimed that the intestate ever was the trustee of the defendants in regard to any of their transactions. So far as is found the parties sustained to each other the ordinary relation existing between an educated, honest business man, and an ordinarily bright and capable man possessed of memory and judgment, but uneducated in knowledge of books and of the art of reading and writing except to a limited extent. The facts reported fail to bring the case within the principles governing the decisions cited for the defendants. The master therefore properly considered the promissory notes given by the defendants as importing full consideration for the amount specified therein. The weight tobe given to the notes themselves, and whether the other evidence and circumstances sustained or overbore the evidence furnished by the notes,
II. The orator excepted to the master’s allowance of $200 usury as entering into the notes of May 23, 1872, as unsupported by evidence. The master says he has set forth in his report all of the evidence tending to establish this allowance in favor of the defendants. These facts are that one witness testified that in 1866, and at several times of which he gives no date, he heard the intestate say he was getting ten per cent interest of the defendant. It is evident that the other times were prior to giving the mortgage in 1872, as they are cited as bearing upon that transaction. Another witness testified that the intestate told him the same in substance in 1869. He also finds that during a portion of the time cov
The -pro forma decree is reversed; and cause remanded with a mandate to enter a decree for the orator in accordance with the views heretofore •expressed.