Smith v. Blaisdell

17 Vt. 199

• Court: Supreme Court of Vermont
• Decided: January 15, 1845
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Ch. J.

The orator sets forth that he is the assignee of ,a bond, executed by the defendant Blaisdell to John Nason, on the 20th of August, 1833, in which Blaisdell obliged himself, on the payment by Nason of the sum of three hundred and seventy five dollars by the first of April, 1834, with the interest, to deed to him, Nason, fifty acres of land in St. Albans, which were deeded to Blais-dell that day by Israel P. Richardson. The land was a part of the William Nason farm, and was held by him under alease from Jotham Bush, providing for the payment of an annual rent of six dollars and twenty five cents. William Nason, who died in 1810, by his will devised his home farm to his wife during her life and widowhood, and this farm included about eighteen acres of the fifty acres before mentioned. The widow of William Nason died in the year 1829. The residue of the fifty acres was devised to Asa Lock and his wife during their lives. Sundry legacies iVere given in that will to Sarah Morrill, Polly Ryan, Betsey Hickok, — afterwards Mrs. Ainsworth, — and Peggy Nason. The residue of his estafe hé bequeathed to John Nason, he paying the legacies. The interest devised to Lock and his wife afterwards became vested in one 1 Hickok, who died without issue in 1821, leaving brothers and sisters, and his mother, Betsey Ainsworth, his legal heirs.

On the 21st of July, 1820, John Nason released all his right and interest in the fifty acre lot to his-sisters, Sally Morrill, Polly Ryan, Peggy'Nason and Betsey Ainsworth. John Nason has always been in the occupation, with his mother, the widow of William Nason, during her life, and his sisters, of the whole of the home farm, of William Nason, until he surrendered the occupation of the fifty acres to the defendant Blaisdell, in May, 1834. Bush commenced an action of ejectment against John-Nason in February, 1827, the rent due on his lease having been unpaid, and recovered judgment in September, 1827, and a writ of possession was executed. It appears, however, that there was an understanding between John Nason and the agent of Bushin relation to this recovery, and Bush, at the request of Nason, executed a new lease to Israel P. Richardson, on payment of about the same rent, being six dollars and fifty cents. Richardson, in his testimony, says he held this in trust for John Nason, and as security for what he paid for rents to Bush, and for what John Nason owed him. There were some negotiations between John Nason and John Smith, Esq., and then between Na-son, Smith and the defendant Blaisdell, which terminated in Richardson’s executing a deed to Blaisdell on the 20th of August, 1833, and'BIaisdell’s executing the bond mentioned before. On the 7th of September of the same year Nason deeded all his interest in the land before mentioned to the defendant. This deed, as well as the one from Richardson and the bond, although the dates are different, were undoubtedly part of one and the same transaction. Having failed to pay the sum mentioned in the condition of the bond, John Nason surrendered the possession to the defendant, who has remained in possession ever since.

The orator, Smith, having purchased the home farm of William Nason, took an assignment of the bond before mentioned from John Nason in April, 1836. Betsey Ainsworth, Peggy Nason and Sally Morrill have also deeded to him all their interest in the fifty acres, they being the heirs and devisees of William Nason, and also holding by grant from John Nason, by his deed of July 21, 1821, before mentioned, and the said Betsey Ainsworth being also one of the heirs of Hickok, before mentioned, who appears to have had the legal title to that part devised to Lock and his wife; — and, in respect to this, it appears that, when Hickok purchased, but a small share of the purchase money was paid by him, but it was principally paid, or procured to be paid, by John Nason. Having these several legal and equitable interests, the orator, Smith, preferred this bill in December, 1839, for the purpose of compelling the defendant to release to him the land before described, on being paid the amount specified in the condition of the bond before mentioned. He had previously, — in March, 1837, — commenced his action of ejectment in the name of Peggy Nason against the defendant, to recover possession of the same land, and that cause is also before us on exceptions.

A variety of questions have been discussed, both in this case, and in the case at law, which it will not be necessary for the court to decide. Indeed, most of the questions, which arise on this bill, are also involved in the case in favor of Peggy Nason against the defendant, although the parties have to take different views of the same question in the one case, and in the other. It is contended on the part of the orator that the estate, which the defendant received by virtue of his deeds from Richardson and from Nason, was, in consequence of the bond he executed, but in the nature of a mortgage, and that the parties are to be treated in the character of mortgagee and mortgagor ; while it is contended, on the part of the defendant, that he made an absolute purchase, and only contracted to convey to Nason as a purchaser, on his making the stipulated payment.

It clearly was not a technical, legal mortgage; but we are inclined to the opinion that the parties viewed it, in some measure, in that light. Richardson held the estate as a security, and Biaisdell, by taking the deed from Nason as well as Richardson, executing the bond to Nason of even date with the deed from Richardson, and suffering Nason to remain in possession until the time stipulated, evidently contemplated that Nason had an interest in the estate, that it was subject to redemption, and that he did not consider it as an absolute, unconditional purchase. The court, therefore, would not have considered time so far of the essence of the contract between the parties, as that they would not have relieved Nason from the forfeiture occasioned by his not literally complying with the condition of the bond, by paying the amount due on the very day. Na-son’s remaining in possession paying no rent, but being under obligation to pay the amount due to the defendant, with the interest thereon, as a condition of the defendant's deeding to him, would undoubtedly have induced a court of equity to have granted him relief, if applied for in season. But, inasmuch as he abandoned the possession to Blaisdell, took no steps whatever to pay the amount due, and offers no excuse for not so doing, the court would not have been inclined to sustain this bill, brought after the lapse of so long a time, and relieve either Nason, or the orator, from the consequences of not complying with the condition of the bond, and paying the money when due. The orator has therefore framed Jhis bill with a double aspect, and has set forth other grounds for equitable relief. It becomes, therefore, necessary to examine what title the defendant has to the premises in question.

By the lease from Jotham Bush to William Nason, executed in 1808, the lessor granted to the latter, his heirs and assigns, as long as water runs, grass grows, or the sun shines, the fifty acres in question, on this special condition, “ that the said William Nason, his heirs and assigns, shall well and truly, yearly and every year, on the 15th day of November, pay and deliver the sum of six dollars and twenty_five cents, and all taxes,” &c.; “and, if any one year’s rent remain unpaid for more than one year, so that two years’ rent becomes due and unpaid, then it shall be lawful for the grantor, his heirs and assigns, after giving the tenant in arrear for rent thirty days notiee in writing, to re-enter,” &c. On the construction of this lease we cannot consider, as has been argued, that the estate thereby granted was limited and at an end on the failure to pay two years’ rent; but there was a condition attached to the rent itself, and to the right of the landlord to re-enter, — to wit, that he should give thirty .days notice to the tenant; and, if he gave no such notice, he had no right to re-enter; — this principle is found in Co. Lit. 201 b. The right to re-enter for non payment of rent is not incident to the estate of the lessor at common law, but must be reserved by deed, and all the conditions, or stipulations, annexed' thereto must be complied with.

It appears abundantly from the testimony in this case that Bush, previous to bringing his action of ejectment, had given no notice whatever to the devisees of William Nason; and the effect of his judgment against John Nason, and the executing a writ of possession, could be nothing more than a voluntary surrender, by John Nason to Bush, of his possession, which was nothing more than that of a tenant at sufferance, as he had long before deeded all his interest therein to his sisters, and as John reason went back immediately into possession. The relative situation of John Nason and his grantees, under his deed of July 21,1820, to Sally Morrill and others, remained unaltered. The deeds, therefore, which Israel P. Richardson received of Bush, and which the defendant received of Richardson and John Nason conveyed to him no title, as against the grantees of John Nason under the deed of 1820, and as against the devisees in the will of William Nason.

The defendant Blaisdell can set up no legal title against the grantees of John Nason under this prior deed, and, in a suit at law, their title must prevail against him. There is, therefore, an obvious equity in this case, on the part of the orator, that whatever in-cumbrance on the land may have been created by John Nason, and whatever embarrassments may have been caused in the title by the proceedings in the action of ejectment, and the lease to Richardson, arid the deeds to Blaisdell, should be removed, and the orator be reinstated in all the rights which those, from whom he claims, had, previous to the recovery in ejectment in the name of Bush. And there is also an equity on the part of the defendant .that he should not be dispossessed, without being repaid the amount which he has advanced to John Nason. The grantees under Nason’s deed of July, 1820, suffered a long time to elapse, before they set up any claim under that deed, or manifested any intention to. dispute the doings of John Nason. They might and ought to have known that John Nason, under a claim, had created an embarrassment on their title, and had received credit, both of Richardson, Smith, and the defendant, on the supposition that their title was defeated by the recovery by Bush against Nason, and should have taken steps earlier to set aside that recovery, and the lease to Richardson.

But, inasmuch as Nason was suffered to remain in possession by Richardson and the defendant Blaisdell, as the owner of the estate, paying no rent therefor, and as the lease to Richardson was treated by him only as a security, and Nason was suffered to treat and negotiate about the land as the owner, and as Blaisdell also suffered him to remain in possession, and" gave him a bond to convey, which was uncancelled and left in his possession, and as the orator commenced his action at law, in the name of one of his grantors, within three years after the defendant took possession, and commenced this bill within six years, we think the orator, is not to be precluded from his right by any lapse of time, — he consenting to make such compensation to the defendant, by repaying to him the money which he advanced on the supposition that John Nason was the owner, or otherwise, as the court may think proper, and having offered so to do in this bill. We cannot consider the defendant as a mortgagee in possession, accountable for rents and' profits, but we consider him as entering by the permission of John Nason, and receiving the rents and profits in lieu of, and in satisfaction of, the accruing interest on the sum due, and specified in the condition of his bond. Nason had been in possession before, paying no rent, and Blaisdell should also remain there, paying no rent to the orator, and those under whom he claims. The orator must therefore pay to the defendant the sum due on the bond when the defendant took possession in May, 1834, and the defendant must release all title which he derived under the deeds from Richardson and Nason to him. The facts set forth in the bill, and the prayer thereof, are sufficient to entitle the orator to this relief.

It will be seen, that, in this view of the case, we have not thought proper to discuss, or decide, how far equity will relieve a tenant, when the landlord, under a clause of re-entry, has entered for a forfeiture by reason of non-payment of rent. It was said by the Lord Chancellor of Ireland, in the case of Drought v. Redford, 1 Molloy 572, that equity always relieved in such cases; and the cases read at the bar are very strong to that effect. The case before us does not call for a decision of that question, nor require us to say under what circumstances a court of chancery would grant, or refuse, relief to a tenant.

An objection has been raised against granting relief to the orator, on the ground that his deeds from Sally Morrill, Peggy Nason .and Betsey Ainsworth are void, as the defendant was, at the time of their execution, in adverse possession. The court have felt there wag some difficulty on this account, as there are some decisions which go the length of saying that a decree will not be made for a plaintiff, who states his title under a deed from one out of possession. The consequence, however, of dismissing the bill on this account would be to leave the defendant without any defence at law, and liable to be dispossessed without being repaid the amount he has paid out, and also liable, as a wrong doer, for the rents and profits, and compel him to come into chancery to ask the very equity which we are disposed to grant him.

We are of opinion, however, on consideration, notwithstanding this objection, that the orator may maintain this bill. The bond executed by the defendant to John Nason might be assigned, so as to transfer all the interest which he had therein. The orator, by his deeds from Sally Morrill and others, had such a claim to the land that he could maintain an action in their names to recover the possession, which, in the event of a recovery, would enure to their benefit. Any charge upon the land, either legal, or equitable, created by the act of John Nason, and acquiesced in by his grantees under the deed of 1820, it became the duty of this orator to pay and extinguish. The equitable right to have this incumbrance extinguished, and to receive a deed from this defendant of all his right derived from Richardson and Nason, was in this orator. As the purchase from Sally Morrill and others may be considered as made for the purpose of confirming the right of the orator, which he derived by his assignment of the bond from Nason, and as there is no proof of any champerty and maintenance, we are not disposed to consider the orator as deprived of any part of his remedy, sought for by this bill, on account of the possession of Blaisdell.

The decree of the chancellor will therefore be revérsed, and the case will be remanded to the court of chancery, with directions to enter a decree that the orator, on or before the first day of May next, pay to the clerk, for the use of the defendant Blaisdell, the sum of three hundred and ninety dollars and sixty one cents, and that the defendant Blaisdell, within ten days thereafter, release to the orator all title which he derived under the deeds to him from Richardson and Nason, and give up the possession, without doing or permitting any waste therein, and that he pay the cost accruing in this court; and no cost will be taxed for either party previous to the decree made by the chancellor. The defendant, by resisting and contesting the right of the orator to redeem, cannot claim the benefit of that rule in equity, which awards to a mortgagee, in most cases, his costs on a bill to redeem. The orator, by not having actually tendered and offered to the defendant the amount due in equity, has not entitled himself to be paid his costs.