Davis v. Hemenway

Where, in an action at law, the county court find that the defendant has the interest of a mortgagor in certain premises, the legal title of which is in the plaintiff, and the bill of exceptions does not detail all the evidence or state all the facts in the case, that finding cannot be revised by the supreme court. The defendant, having the interest of a mortgagor in certain premises, which was evidenced by a written contract between him and the person who had the legal title, assigned his contract and interest in the premises, with a provision that the assignment should be void upon the failure of the assignee to perform certain conditions,* the assignee did fail to perform, and abandoned the possession of the premises, which the defendant retook, without auy reconveyance of them to him; thereupon the mortgagee executed to the defendant another and similar contract, and afterwards conveyed the premises to the plaintiff, who had knowledge of the defendant’s interest: Held that the defendant held the same interest under the second as under the original contract, and that the plaintiff could not set up any possible interest in said assignees to defeat it. If a person had an equitable interest in a piece of land, and a contract for a deed of it upon the payment of a given sum by a certain time, which has expired; an acceptance of the interest accruing upon that sum after that time, will be an acknowledgment of his equity as still subsisting and a renewal of the contract for a deed. If a mortgagor or purchaser agree to pay a certain sum as rent, that will not constitute him a lessee, if that sum is really only the interest on the debt or purchase money. Neither section, 15, 23 or 30 of Chap. 4á of the Compiled Statutes respecting forcible entry and detainer has any application to the case of an equitable mortgagor or purchaser in possession. They apply only to technical lessees whose terms have expired, and whose • entire right, both legal and equitable, has ceased.

Practice. Equitable mortgage. Lease. Forcible entry and detainer. Forcible Entry and Detainer. The proceeding was commenced before a single justice and came into the county court by appeal, and was there tried by the court, upon the plea of not guilty, at the January Term, 1855, — -Underwood, J. presiding. The premises in question belonged, in the fall of 1846, to the estate of Daniel Gould, to which estate there were five heirs, the defendant’s wife being one; and the defendant was the owner, by purchase, of the shares of three of the other heirs, and had received from the widow a lease of her estate in dower at an annual rent of $25. In the fall of 1846 the administrator upon the said Gould’s estate, under a license from the probate court, sold said premises at auction, and they were bid off by one Farwell, as the agent and for the benefit of the defendant. The defendant went into possession of the premises, but they were never deeded until the 10th of July, 1847, when both the administrator and the defendant deeded them to Jacob Davis by deeds absolute on their face; and the said Davis thereafter claimed that the purchase by him was an absolute and indefeasible one, but the defendant claimed that the deeds were intended only as security to said Davis for the sum of $1,000, advanced by him for the defendant, and such the county court found to he the fact. At the time said deeds were executed, the said Davis gave to one Arnold, as trustee for the defendant, a writing which was referred to on the trial as “ contract A,” by which he promised to quitclaim said premises to the defendant in three years from the first day of April, 1847, if the defendant then paid $1,000, and paid $60, annually, and the rent upon the dower estate, and the taxes, during each year up to that time; but with a provision that if the defendant did not 'pay in every particular, as therein provided, the agreement should be of no validity, and the premises should remain the proprety of Davis, and that the agreement should not be used or considered as any considertion or condition, in any way, directly or indirectly, of the deed which the said Davis had received from said administrator. On the 27th of March, 1848, the defendant assigned, by a writing on the back of said contract A, all the rights and privileges therein reserved to him, to Jacob Orcutt, Elkanah Smith and Leonard F. Davis, upon the condition that they performed the same stipulations which the defendant was to perform, and paid him $416,67 at the decease of the widow Gould, and in case they failed to fulfil in each and every particular, as specified in that or in the original agreement, said assignment was to be null and void and to this assignment the said Jacob Davis gave his written assent. The defendant had remained in possession of the premises from the time of the auction sale by the administrator, to the time of this assignment, when he surrendered it to the said Orcutt, Smith and Davis, who occupied it thereafter until just before the 1st of April, 1850, when they abandoned the contract, and the premises. Soon after this, on the 1st of April, 1850, the defendant again took possession of the premises, and the said Jacob Davis executed another writing referred to, as “ contract B,” which contained substantially the same provision and reservation with contract A, —the time for the payment of the $1,000 being extended three years, or to the 1st of April, 1853 ; and the defendant thereafter remained in the possession of the premises and had, at the commencement of the suit, made all the payments provided for in said contract B., except the sum of $1,000. The said Jacob Davis deeded said premises to the plaintiff on the 18th day of October, 1853, and it appeared that, at the time of receiving the deed, the plaintiff knew of the arrangements between the defendant and the said Jacob Davis in reference to said land. On the 9th of May, 1854, the defendant paid the plaintiff $60, which the plaintiff receipted as in full for the rent up to the 1st of April, 1854. Upon the foregoing facts, the county court .rendered judgment for the defendant, upon the ground that the plaintiff, having taken his deed with knowledge of the relationship of the defendant and Jacob Davis to said premises, stood himself in the same relation to them that Jacob Davis did; — and that his relation to them was that of a mortgagee, and the defendants’ that of mortgagor. Contract B. was not a mortgage. No deed had passed; and no money had been paid or received for the security of which a mortgage was required. If the defendant ever had any interest in the premises, he parted with it when he assigned contract A. The contract expressly provides that it shall have none of the characteristics of a mortgage. It was a lease reserving rent, with an offer to sell on certain terms, if the defendant chose to accept them; but he was under no obligation to do so. A mutual obligation upon each, in some way, is essential to a mortgage, Little-ton, 205 and notes. Henry v. Bell, 5 Vt., 393. The plaintiff was entitled to a judgment whether the contract was in the nature of a mortgage or not. The terms of the statute are general, and apply to all cases where the relationship of landlord and tenant exists; and it exists between mortgagor and mortgagee, Littleton 205, Sec. 332-3. The contracts between Jacob Davis and the defendant contained all the elements of a mortgage, and in equity, would be so considered. Oatlin v. Ohitenden, Bray1.163. Campbell v. Worthington, 6 Vt. 448. Baxter v. Willey, 9 Vt. 276. Mott v. Harrington, 12 Vt. 199. Mattocks v. Lyman et ah., 16 Vt., 113. Wright v. Bates, 13 Vt. 341. This action cannot be maintained where the relation of landlord and tenant, or lessor and lessee, does not exist.