Sweet v. Tucker , 43 Vt. 355 ( 1871 )

The opinion of the court was delivered by

Barrett, J.

The order shown by the chancery docket is explicit and unambiguous. According to that, the money was paid to the clerk for the defendant, as a condition precedent to the taking of a decree by the plaintiff. Thereupon the plaintiff took the decree contemplated by said order. The condition imposed by the plaintiff, when he paid the money to the clerk, was not within the scope and effect of the order. When the plaintiff proceeded to take his decree under that order, the condition imposed on the clerk became nugatory, and the defendant was entitled to take that money by virtue of said order. That order remains in force, not appealed from or reversed. The defendant, holding the money under it, cannot be said to hold it against right or equity, in any such sense as to enable the plaintiff to recover it in this action. Obviously there was some misadventure on the part of the plaintiff in the course taken in the foreclosure suit; but it cannot be corrected by this action of assumpsit.

Judgment reversed, and judgment for the defendant.