Joslyn v. Taplin & Rowell

57 A. 995, 76 Vt. 422, 1904 Vt. LEXIS 159

• Court: Supreme Court of Vermont
• Decided: May 28, 1904
• Status: Published

Opinion

Watson, J.

The land contract contained a provision whereby the vendor reserved the ownership and control of all crops, produce, and products thereafter raised or grown on the premises until the notes described therein should be fully paid. Within the meaning of that provision, the notes were never paid. Consequently the vendee never became the owner of the hay in question nor of any attachable interest therein. Under this reservation the vendor was the sole owner of the hay until he sold it to the defendants after the decree in the foreclosure proceedings respecting the land had become absolute. By their purchase the defendants became the owners thereof and were such at the time of the alleged conversion. The cases of Batchelder v. Jenness, 59 Vt. 104, 7 Atl. 279, and of Dickermam v. Ray, 55 Vt. 65, are authorities decisive of this question.

It is argued, however, that under the said reservation the parties to the contract stood in the relation of mortgagor and mortgagee respecting the crops, produce, and products, and that the vendee as such mortgagor had an attachable interest in the hay. In support of this contention the plaintiff relies upon Whiting v. Adams, 66 Vt. 679, 30 Atl. 32, where a land contract containing a similar reservation was involved. But there the vendor brought his bill to foreclose the vendee’s equity of redemption not only in the land but in the property covered by the reservation also, thereby admitting in his pleadings in effect that the parties stood in the relation of mortgagor and mortgagee under the reservation. The vendor having made such a case by his bill was bound by it. Thomas v. Warner, 15 Vt. 110. Furthermore the parties agreed that such was their relation. “This admits,” says the court, “that the defendant lias an equity in all the property embraced in the contract sought to be foreclosed,” and the case was treated accordingly. Hence the question now under consideration was not then before the court, and that case is not an authority thereon.

Since the vendee in the land contract had no attachable interest in the hay, the plaintiff acquired no lien thereon by his attachment as against the vendor or the defendants, his subsequent vendees. Sanborn v. Kittridge, 20 Vt. 632, 50 Am. Dec. 58.

It is found that the value of the premises which came to the vendor under the decree in the foreclosure proceedings, exceeded the sum due on said notes and the costs of foreclosure. The plaintiff claims that the notes were thereby fully paid, and that consequently the vendee then became the owner of the hay. But this could not' be so unless he previously had an equity of redemption therein, which we have seen he did not have.

Judgment reversed, and judgment for defendants to recover their costs.