Blodgett v. Blodgett

48 Vt. 32

• Court: Supreme Court of Vermont
• Decided: August 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, J.

Upon the facts -found by the chancellor, the bill of sale executed by the orator on the 28th of April, 1870, of the property described therein, was in legal effect a mortgage. Wood v. Dudley, 8 Vt. 430; Atwater v. Mower, 10 Vt. 75; Coty v. Barnes, 20 Vt. 78. And, although after condition broken the legal title to the property vested in the mortgagee, the mortgagor had the right to redeem by the payment or tender of payment of the amount the mortgage was given to secure. A mortgagor of .personal property after condition broken has an equity of redemption which may be asserted if he brings his bill to redeem within a reasonable time. 2 Story Eq. Jur. s. 1031; Kemp v. Westbrook, 1 Ves. 278; Hart v. Ten Eyck, 2 Johns. Ch. 100; Charter v. Stevens, 3 Denio, 33; Patchin v. Pierce, 12 Wend. 61; Hinman v. Judson, 13 Barb. 629. It has been claimed in argument that the orator should have sought his remedy by an action at law.

A tender of the amount due upon the mortgage 'after default- in payment would not, at law, reinvest the mortgagor with his former title to the property. Nothing short of an acceptance of the sum tendered would, as between mortgagor and mortgagee, extinguish the legal title of the latter in the property mortgaged. The cases above cited are full authorities in favor of the jurisdiction of this court. The defendant having disposed of the property mortgaged after tender of payment made, and before the final hearing, so that the court could not make an order for its redelivery to the orator, it was competent for the court to enter a decree for the amount of the orator’s interest in the property.

The decree of the Court of Chancery is affirmed, and cause remanded.