Howard v. Scott

50 Vt. 48

• Court: Supreme Court of Vermont
• Decided: August 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by

Ross, J.

The masters’ report finds that the deed of the Perley lot, though absolute in form, was, as between the parties, in fact a mortgage to secure to the defendant any indebtedness which the orator might be then owing him, or which he might thereafter owe him. The finding of a master in matters referred to him, in regard to the facts established by the testimony, is as conclusive upon the parties as the verdict of a jury in a civil cause, and will be reviewed or set aside only for the same reasons that a verdict would be. Where there is evidence tending to establish the facts found, neither the Court of Chancery, nor the Supreme Court on appeal, will review the findings in regard to the weight to be given to the testimony. The party attacking the masters’ report in this particular must satisfy the court that the master has acted corruptly or has been led astray by having entertained a mistaken view of the law applicable to the testimony.

Nothing of the kind is attempted to be shown in this case. Moreover, the testimony, we think, fully warranted the master in finding the facts reported in regard to this deed. Hence there is no error in the decree of the Court of Chancery in regard to the effect to be given to this deed. The orator claims that the chancellor, in the decretal order, ordered a foreclosure of the Porley lot, so called, under the’ deed brought in controversy in this case. If that be so, it is error. The bill is not drawn for that purpose, and the relief under the bill must be in conformity with the bill. But we do not so understand the decretal order. Under the bill, an account was taken of the indebtedness of the orator to the defendant, and the balance found, and also an injunction obtained on the defendant against proceeding in a foreclosure suit against the orator on other premises. The decretal order, after directing a recast of the interest on the yearly balances of account and indebtedness, states that the sum so found is the sum for which the defendant is to “ have a decree in his foreclosure against the orator,” and then proceeds to dissolve the injunction obtained in this suit, staying the prosecution of orator’s foreclosure suit. From the language of the decretal order it is entirely clear that the chancellor did not intend to order a decree of foreclosure in this suit, but in the defendant’s foreclosure suit. Perhaps that part of the order should be treated as surplusage in this suit. The only decree ordered in this suit is one establishing that the deed of the Perley lot is, in equity, a mortgage, and also the amount due from the orator to the defendant. As the defendant has prevailed in both the particulars, which the orator has called in question by his bill, we see no occasion for disturbing the decree of the chancellor in respect to costs.

The decree of the Court of Chancery, establishing that the deed from the orator to the defendant of the Perley lot, mentioned in the bill, and dated the day of June, 1871, is in equity a mortgage, and establishing the amount due from the orator to the defendant, and dissolving the injunction, is affirmed, and the cause remanded to the Court of Chancery.