Blandin v. Silsby , 62 Vt. 69 ( 1889 )


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  • The opinion of the court was delivered by

    Tyler, J.

    This cause was heard at the General Term, 1887, upon the bill, answer and master’s report, and the following mandate was made and sent to the Court of Chancery:

    MANDATE.

    The quit-claim deed from Blandin to Howe and the written contract of the same date between said parties are one transaction. Although in form the legal title, so far as Blandin’s interest was concerned, was then vested in Howe, still inequity Howe was a trustee, and any one purchasing from him, with notice that he held the title in trust, would take the same clothed with the same trust.

    *74Silsby owes, and never has paid, the Blandin mortgage. He had no right to suppose it extinguished, as he ■ never paid it to any one, and before he settled with Howe’s administrator he had actual notice of Blandin’s rights as between him and Howe. Harris has an interest in this cause and is a proper party. Howe’s estate has no interest, and so need not be represented. The orators are entitled, upon an amendment of their bill, as the case now stands, to have the Blandin mortgage treated as on foot and for a foreclosure.

    The bill in its present form will not admit of a decree for foreclosure, as it proceeds upon the basis that the defendant has no legal or equitable interest, but it may be amended, and the decree is pro forma reversed and cause remanded for the Court of Chancery to allow such amendments of the bill as counsel! may be advised are needed, and upon such terms as that court may impose.

    For the Court, H. Henry Bowers, Judge.

    At the March Term, 1888, of that court, an order was made allowing amendments to the bill and answer, pursuant to the mandate, and at the next September Term a decree was made for the orator, upon the amended pleading-3 and the report, for the amount of the Blandin mortgage. The cause comes here again for revision upon the defendant’s appeal from that decree.

    The bill as amended prays for a foreclosure of the defendant’s interest in the mortgaged premises. No new matter of defense is set up in the amended answer sufficient to bar the orator of his right to a decree ; therefore,

    The decree is affirmed and cause remanded.

Document Info

Citation Numbers: 62 Vt. 69

Judges: Tyler

Filed Date: 10/15/1889

Precedential Status: Precedential

Modified Date: 11/16/2024