14 Vt. 518 | Vt. | 1842
The opinion of the court was delivered by
The orator’s bill is confessed by Scott and by Gillett. As to them, it may be considered that Scott w'as the sole owner of the premises purchased of Baxter, after paying the amount due to Baxter; that Scott erected the buildings and made the improvements with his own means, and that Gillett had no interest therein.
Baxter has put in an answer, which is traversed and testimony has been taken.
From the testimony it appears that Scott was indebted to the orator as early as the year 1827; that some time in January, 1830, Baxter gave his bond to Gillett to deed him the premises, on the payment of fourteen hundred dollars, and an annual rent of one hundred and sixty-eight dollars ; that' very soon afterwards, Scott moved on to the premises, made improvements, erected a new tavern house and other buildings, and continued to occupy them until March, 1835, when he sold to one Doolittle, and, in the course of this time, he contracted a debt with Baxter and his partner, Edmunds, of from ten to fifteen hundred dollars for materials, paying hands, &c.
In August, 1834, the orator caused the land, buildings, &c., to be attached upon two writs, as the property of Scott, in due form of law, on which attachments judgments were rendered, and, on the fifteenth day of May, 1835, executions issuing thereon were levied on forty-nine one-hundredths, of the premises, as the property of Scott, for the sum of about four hundred and thirty-four dollars. In this levy the appraisers estimated the whole premises as worth two thousand nine hundred and thirty-three dollars and thirty-four cents, and the sum due to Baxter as two thousand and fifty dollars.
On the fifth of March, 1835, the premises were sold by Leslie, as the agent of Scott, or Gillett, or both, to Doolittle for three thousand dollars; of which, two thousand
It appears to us, undeniably, that Gillett had no interest in the original purchase by Scott from Baxter, nor is there any evidence proving, or tending to prove, that he ever advanced any thing to Scott towards the buildings, or had any debt whatever against him. He has putin no answer to the bill, either denying the facts set forth therein, or setting up any claim either in law or equity thereto, or any debt due, or claim against Scott. As it respects him, therefore, by his suffering the bill to be taken as confessed, these facts must be conceded. No evidence has been introduced to show or establish any such claim of Gillett. Leslie, in his deposition, does not state any such debt, and there is no other evidence, except as to the sayings of Scott and Leslie, which cannot be considered as legal evidence in this cause. If it was important for either of the defendants to establish any legal or equitable claim in Gillett, as against the creditors of Scott, it is sufficient to say that no evidence to that effect has been introduced, but, on the contrary, all the evidence tends to prove that his name alone was used for the benefit of Scott. We consider then that Scott had such an interest in the premises, at the time of the attachment made by the orator, as was subject to be taken by his creditors, either at law or in equity, and that if the attachment had been immediately followed by a bill in equity, enjoining Baxter from conveying
We have had some doubts whether Edmunds should not
We have further had some doubts, whether this bill was so framed as to entitle the orator to the decree we are about to make. These have, however, yielded, on further examination. The end and scope of the orator’s bill is to obtain a satisfaction of his debt, out of the interest which Scott had in the premises, at the' time of the attachment. He had levied his attachment and execution on what appeared to him to be that interest, and which- he was justified in considering as the interest of Scott, from the facts which he has proved to have been then in existence. From the evidence, however, it appears that, in equity, Baxter & Edmunds had a further claim which should be considered as a charge on the estate, and although the orator may not, on that account, be entitled to the specified relief prayed for, or a deed of the premises levied on, yet, under his prayer, that the defendant pay him the amount thereof, and his general prayer, he is entitled to have a decree for the payment of the amount of the note which was given to Gillett; as Baxter should not have conveyed to any one but Gillett, after notice of the at- ' tachment, and thereby either embarrass the orator in the collection of his debt or turn him over to other parties to obtain what was equitably due to Scott, the legal right to which was in the name of Gillett.
As a result of the whole, we are of opinion that Scott made the purchase of Baxter for which the first bond was given that he was at the whole expense of building ; that he occupied the tavern for his own benefit, and was, in short,
On the principle that equity will aid a judgment creditor to reach the equitable interest of his debtor, when payment of his debt cannot be obtained at law, we. think a decree should be made for the orator for the amount of the note given by Baxter & Edmunds to Gillett, out of the purchase money on the sale to Doolittle, which is four hundred dollars, with the interest'from March,1835, and the cause will be transmitted to the chancellor to make a decree accordingly. No costs will be decreed, against Baxter, in this case, as there is no evidence to implicate him in any fraud or any attempt to conceal the property of Scott, and he may have thought he was fully justified in executing this note to Gillett, and would not be justified in paying the same to the orator without a decree of this court. Scott and Gillett will be decreed to pay cost.