Hills v. Loomis , 42 Vt. 562 ( 1870 )

The opinion of the court was delivered by

Wheeler, J.

The allegations in the orators’ bill are very meagre, and if its sufficiency were under consideration upon demurrer, it might be found to be wanting in some essential particulars, but the defendant has answered it fully, and answered it in the aspect, in which it was intended to have been brought, and testimony has been taken on both sides with reference to issues made upon the answer in that aspect and a final decree made without any question as to its sufficiency having been made in the court of chancery. Under these circumstances it is too late to raise this question here. It is insisted by the defendant that by the laws of this state, the parol testimony taken and filed in this case is not admissible or proper to be considered to show that the deed from the orators to the defendant was not intended to be an absolute conveyance according to its terms, but was in fact made for security for money paid for Mr. Hills by the defendant, and Cornier v. Chase, 15 Vt., 764, is relied upon to establish that doctrine. Conner v. Chase is clearly different from this case. There the possession had followed the conveyance into the hands of successive grantees, who, although they had notice that the orator claimed to have some equity in the land, had no notice of the origin, extent or foundation of the claim, and the controversy was mainly between the orators and these grantees. The case in hand is more like Wright v. Bates et al., 13 Vt., 341. In that case the deed was absolute. The grantor remained in possession, and there was a lease of the premises from the grantee to the grantor reserving rent in lieu of interest. Substantially the same facts exist in this case, and on the authority of that case and of Rich v. Doane, 35 Vt., 125, and other cases in this state less directly applicable, and upon general principles of equity, we hold that the evidence in this case is admissible and proper to be considered as bearing upon the question whether the deed was an absolute conveyance or a mortgage. Upon the question of fact we have no difficulty whatever. We think it is clear that the parties fully understood that the deed was to be merely security for the money that the defendant should pay for Mr. Hills. The contrary conclusion can not be arrived at without disregarding the most obvious inferences to be drawn from the undisputed circumstances, and without imputing to many respectable persons gross recklessness, if not perjury, in testifying, while this one is not very inconsistent with the testimony of the defendant’s witnesses or even of the defendant himself.

Although this is essentially a bill to redeem, it is somewhat in the nature of a bill-for specific performance, and as the whole litigation has grown out of the defendant’s denial of the orators’ right to redeem, and the orators have prevailed in the controversy, the ordinary rule that the costs of the proceeding for redemption are put upon the mortgagor, does not justly apply to this case. The orators, therefore, are to be allowed their costs.

The result is that the pro forma decree of the court of chancery, dismissing the orators’ bill, is reversed and the case is remanded to that court, with a mandate that an account bo taken under the direction of that court, of the money paid by the defendant for the orator, James II. Hills, on account of the premises in question, and of the money received by him from the orators, and of the amounts received by him from the premises in money or otherwise, and the balance in favor of the defendant ascertained, with interest upon it to the time of making the final decree, and that a final decree bo entered for the orators, that upon the payment by the orators to the clerk of that court, for the use of the defendant, of the balance found duo the defendant at the time of the decree, after deducting therefrom the orators’ costs of this suit, within some time to be fixed by that court, the defendant make proper conveyance of the premises to the orator, Jamos H. Hills, and ho perpetually enjoined from setting up any claim to the premises, and that in case the orators fail to make such payment within the time limited, the orators’ bill be dismissed with costs.