Allen v. Gates

• Decision Date: 21 September 1900
• Citation: 73 Vt. 222,50 A. 1092
• Court: Vermont Supreme Court
• Parties: ALLEN v. GATES et al.

50 A. 1092

73 Vt. 222

ALLEN

v. GATES et al.

Supreme Court of Vermont. Chittenden.

Sept. 21, 1900.

Appeal in chancery, Chittenden county; Taft, Chancellor.

Injunction by John J. Allen against Clarence D. Gates and others. Bill dismissed, and orator appeals. Reversed.

Argued before ROWELL TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

Charles T. Barney and Seneca Haselton, for appellant.

Hamilton S. Peck, for appellees.

WATSON, J. The orator has filed his bill, seeking to restrain the defendants from the removal of a certain building. The defendants made answer, and evidence has been taken. We find that in May, 1889, Leverett P. Englesby and Fred N. Whitney entered into a written agreement, by them signed, sealed, and witnessed, but not acknowledged, whereby Whitney leased of Englesby a piece of land 25 feet front by 50 feet deep on College street, in the city of Burlington, for the term of. five years, ending April 1, 1894, at a monthly rent of $9 to be paid therefor. The lease contains, among other things, provisions as follows: "The said Whitney is to have the right to build on said lot a wooden building practically in accordance with plans now drawn. * * * At the end of this agreement, if the said Englesby and said Whitney cannot agree on a further arrangement said Whitney shall have the right to remove said building within sixty days from the termination of this agreement or to require of said Englesby that he buy said building at its exact cost, less 20 per cent; and, if be shall so require, said Englesby agrees to buy on said terms." Whitney went into possession of the land under the lease, and, in accordance with its terms, Immediately erected a building thereon; and when the building was completed he rented part of it and published the Burlington Clipper in the other part, and had the exclusive use of the building and remained in possession thereof throughout the term of the lease, paying monthly ground rent as therein stipulated. On March 8, 1894, Whitney notified Englesby that he should require him to take the building at the expiration of the lease, according to the agreement. Englesby said that he was not then situated financially to take it and pay cash. Considerable correspondence was had between them touching the matter, resulting in an understanding that Whitney should collect the rents in bis own interest; and he remained in possession of the building, looked after the renting of it, collected the rents, and paid the taxes and insurance thereon until November 4, 1897, when he sold and conveyed it by war ranty deed to the defendants, under the name of tlie Burlington Granite Company, in consideration of $300 paid him therefor. This deed was recorded May 18, 1898. On April 21, 1893, Englesby gave a mortgage deed of the land thus leased, with other land, to George A. Eastman, conditioned for the payment of. notes aggregating $25,000; and no mention was made in the mortgage of Whitney's ownership of the building, nor of his having any interest therein. The mortgage was assigned to H. C. Ryan May 8, 1893, and to the Massachusetts National Bank of Boston and the National Bank of Chester, in this state, on March 1, 1894. Englesby conveyed the property by quitclaim deed to Charles T. Barney May 28, 1890, and he conveyed it in like manner to Florence H. Englesby, the wife of Leverett F., June 2, 1890. All of these conveyances and assignments were duly recorded. At the March term, 1897. of the court of chancery in Chittenden county, the banks obtained a decree of foreclosure of the mortgage, which became absolute April 21, 1899, and a certified copy thereof was recorded in the land records the day following. Florence H. Englesby and the Howard National Bank, a subsequent mortgagee, were made parties defendant in the foreclosure proceedings. Whitney was not made a party. Other persons became interested in the equity of redemption by conveyance during the pendencv of the suit, or before the decree became absolute, including the orator, who was the owner thereof at the time of the commencement of the suit at bar; but, as such interests were barred by that decree, it is unnecessary to more particularly notice them. The banks conveyed the property to P. H. Flynn May 8, 1899, and he conveyed the building in question to the orator June 21, 1899. Prior to taking the assignment of the mortgage, the banks were fully informed concerning the agreement under which the building was erected, and knew that Whitney was in possession, claiming to own it. When the building was conveyed to the defendants, the key thereto was delivered to them, and they went into possession, and made repairs thereon, intending to move their business thereinto; but in December following they were notified that the orator owned the property, and they must pay a rent of $300 a year if they moved their business into the building. Thereupon the defendants made arrangements to move thebuilding elsewhere, and were preparing so to do when this suit was brought, and they were temporarily enjoined. The purchase by Flynn was through the orator, as his agent; and in the performance of his duties as such agent and before the transaction was consummated or deed given, the orator acquired full knowledge of Whitney's rights and interests in the property, and knew that he was in possession,...