Selinas v. Lee

51 A. 5, 73 Vt. 363, 1901 Vt. LEXIS 193

• Court: Supreme Court of Vermont
• Decided: November 19, 1901
• Status: Published

Opinion

Munson, J.

The orators, husband and wife, were joint owners of a building, of which a part was leased to defendant Lee. While owing the orators fifty dollars for rent, Lee sued the orator Charles in trover, and obtained a judgment for over one hundred dollars. The execution issued thereon was placed in the hands of defendant Kent for collection, and was-paid by Charles on demand. The orators then sued Tee for the rent due, summoning Kent as trustee; and Lee’s attorneys-entered as claimants of the fund. The orators obtained judgment, but the claimants were held entitled to the fund, and the orators appealed. The orators now seek by this bill to have the rent due them ascertained in equity and set off against the sum collected by Kent on Lee’s execution against the orator Charles.

The first essential in a case of this kind is that there be counter claims in existence to be set off. If this bill had been brought before the orator Charles paid the execution in favor of Lee it would have stood upon better ground. But when that payment was made, Lee’s claim was extinguished. The orator Charles is no longer indebted to Lee, and there is nothing upon which the orators could have their demand against Lee applied.

Decree affirmed and cause remanded.