Holmes v. Caden , 57 Vt. 111 ( 1884 )

The opinion of the court was delivered by

Ross, J.

The testimony establishes that J. & T. Cadeu agreed to give to the oratrix, Mary, the premises in contention in payment for her services for them for ten or eleven years; and that in part fulfilment of the contract they allowed her to take possession of the tenement in the upper story of the house, which she has occupied four or five years, without rent, and agreed to collect the rent for her of the lower tenement and account to her therefor. Although’ the immediate contract was made between the oratrix and Thomas Caden, it was made known by Thomas to his partner, John Caden, who did not object to the same; that,‘in fact, the contract was made in accordance with an earlier understanding to the same effect between John and the oratrix.

Hence, there is a parol contract for the conveyance of the premises to the oratrix, full payment therefor by her, and possession thereof by her, as owner, for more than four years. These facts take the case out of the operation of the Statute of Frauds, and entitle the oratrix to a decree for the conveyance of the premises and an accounting, in accordance with the prayer of the bill against John & Thomas Caden. Pike v. Morey, 32 Vt. 37; Stark v. Wilder, 36 Vt. 752; Griffith v. Abbott, 56 Vt. 356.

But John Caden is now represented by an assignee in insolvency, and Thomas Cadcn’s estate by an administrator. It is contended that John Caden took the premises on the death of Thomas as a surviving partner — the premises being partnership property — and that his assignee in insolvency therefore takes the whole interest. This is doubtless true. The assignee claims that, under the insolvent law of this State, he has the rights of an attaching creditor, and contends that, although the payment of contract price, and possession by the oratrix take the case out of the operation of the Statute of Frauds against John & Thomas Caden, a creditor could attach and hold it against the oratrix, and therefore he is entitled to hold it as assignee in insolvency of John Caden. It has been held at the present term in The Collender Co. v. Marshall, post, that an assignee in insolvency, under the present State insolvent laws, takes all the property of the insolvent which an attaching creditor has the right to attach and appropriate in satisfaction of his debt. But the possession of the premises by the oratrix long before, and at the time of the insolvency, was notice to his creditors and assignee of all the rights thereto, to which she was entitled by virtue of the contract, payment of the contract price, and possession. These facts, in regard to which a creditor was put upon inquiry by her possession, and which he would have learned by inquiry, rendered the premises as invulnerable to attachment and appropriation by such creditor, as they were, by John and Thomas Caden, or by a purchaser from them. After payment of the price and possession, John & Thomas Caden held the title to the premises, not as of their property, but in trust for the oratrix.

An attaching creditor of real estate, with notice actual or constructive of the true state of the debtor’s title, stands in no better position than a purchaser with the sa,me notice. Perrin v. Reed, 35 Vt. 2; Hackett v. Callender, 32 Vt. 97; Hart v. Farm. & Mech. Bank, 33 Vt. 252.

A purchaser, with notice, can acquire no better title than his grantor has.. Hence the oratrix has the same right to a decree against the assignee in insolvency which she had against John Caclen. as surviving partner of John & Thomas Caden.

The pro forma decree of the Court of Chancery is re- • versed and the cause remanded, with a mandate to enter a decree for the orators in accordance with the prayer of the bill.