Durant v. Pratt ( 1882 )

The opinion of the court was delivered by

Taft, J.

This case was heard on a master’s report. But one question is made in the case, and that is, whether there is more than one hundred dollars due the defendant, J. J. Pratt, under the mortgage dated May 31, 1872.

The master reported that a valid claim did exist under said mortgage, in'addition to the one hundred dollar claim, amounting to six hundred and sixty-eight dollars and sixty-five cents, which, with interest, was a lien on said premises in favor of J. J. Pratt, “ unless the court should determine from the reported facts that the same had been paid, or that the said J. J. Pratt was estopped from setting up the same, against the orator, as a prior encumbrance.” On the facts reported no estoppel is shown. Hackett v. Callender et al, 32 Vt. 97, is decisive against the orator on this question. In that case it was held that where a person was inquired of in respect to a matter in which his answer might affect his pecuniary interest, he had a right to know that the person had an interest which entitled him to make the inquiry, what the object of the inquiry was, and that the answer would be relied upon.

The case at bar lacks all these elements. The orator was not tbe party making tbe inquiries in reply to which the information was given ; at the time he had no interest in the premises, and the defendant could not have supposed that the orator was asking for information with reference to his rights, for he had none. The orator cannot stand upon the ground of an estoppel.

The master should have reported whether the claim had been paid or not. Instead of so doing, he has reported the evidence tending to show such payment, and refers the question to the court. No exceptions were taken to the report, and we think it proper, under our practice in chancery, for the court to pass upon the evidence, and find the fact proven or not proven, the question being submitted to us upon the evidence. It will be disposed of as though the proofs had been taken under our former practice. We are, considering the evidence, clearly of the opinion that the note was paid and extinguished.

The decree is affirmed, and cause remanded.