Batchelder v. Jenness

• Decision Date: 04 January 1887
• Citation: 7 A. 279,59 Vt. 104
• Parties: BATCHELDER v. JENNESS.
• Court: Vermont Supreme Court

7 A. 279

59 Vt. 104

BATCHELDER

v. JENNESS.¹

Supreme Court of Vermont.

January 4, 1887.

Exceptions from Washington county court.

The referee reported the following facts: On the twenty-sixth clay of October, 1877, Luceba Bagley was the owner of a certain farm on which there rested an outstanding mortgage to one Anderson. On that day said Luceba, with her husband, executed a warranty deed of said farm to one Myron Dunn; said Dunn assuming the Anderson mortgage, and agreeing to pay it. In said deed to Dunn the Bagleys retained a lien upon the future growing crops on said farm to secure the payment of six notes given for the purchase money of the farm, and in said deed described. The notes were payable along yearly; and the crops were holden for the note maturing the year said crops were respectively grown.

Dunn went into possession of said farm, and paid something on the outstanding Anderson mortgage assumed by him, but not enough to extinguish any note; and on the twenty-eighth day of October, 1878, at the request of the Bagleys, and by arrangement with said Anderson, Anderson discharged his mortgage against the Bagleys, and took a new mortgage on said farm executed by Dunn. The Dunn mortgage was a mere substitute for the Bagley mortgage, and was executed to accommodate Bagley, who wanted to be clear of the old notes. The Anderson discharge and the Dunn mortgage were executed October 28, 1878, and the former was recorded November 25, 1878, at 3 o'clock p. m., and the latter on the same day at 4 o'clock p. m.

The plaintiff bought of Bagley, for value, the second note in the series described in Bagley's deed to Dunn, which matured October 26, 1880, and on which the interest was payable annually. The plaintiff bought said note after the date of Anderson's discharge of the Bagley mortgage, but while said note was current, and without any notice, actual or constructive, that the Dunn mortgage was a substitute for the Anderson mortgage. After the substitution of the Dunn for the Anderson mortgage, and before September, 1880, said Anderson brought suit against said Dunn, upon an indebtedness other than said mortgage debt, and at the September term, 1880, of Orleans county court, recovered judgment against said Dunn for $275.57 damages and costs, and took out execution thereon. The defendant was a deputy sheriff, and levied upon the crops now sued for by virtue of said execution, and sold the same in due form. The proceedings of the defendant as an officer, and the process under which he acted, were conceded to be regular in form and substance. The crops sold by the defendant as aforesaid were grown by Dunn on said farm in the year 1880, and the plaintiff seeks to hold them under the lien reserved in the Bagley deed to Dunn above referred to; and this suit in trespass and trover is predicated upon said lien. The hay sold by defendant, and the oats, barley, and wheat sold by the defendant, each were sufficient in value to pay the plaintiff's note. The plaintiff seeks to recover damages equal to the amount of his note.

If the lien reserved by the Bagleys in their deed to Dunn is available to the plaintiff as the holder of said note against a creditor of Dunn under the facts reported, then the plaintiff is entitled to recover the amount of said note; otherwise the defendant is entitled to recover his costs. The court rendered judgment on the report that the plaintiff recover the amount of his note; to which the defendant excepted.

Edward W. Bisbee for plaintiff.

The referee finds that the plaintiff is the bona fide holder of the note. This would give him the same lien on the crops which the Bagleys had by virtue of the reservation in the deed. Smith v. Atkins, 18 Vt. 461; Edwards v. Edwards, 11 Vt. 587; Swift v. Moseley, 10 Vt. 209; Grant v. King, 14 Vt. 867; Cox v. Hall, 18 Vt. 191; Hurd v. Fleming, 34 Vt. 169.

Grout &; Miles, for defendant.

The lien upon the crops, reserved in said deed from the Bagleys to Dunn, was not such a "written memorandum, signed by the purchaser witnessing said lien," as is required by section 1992, B. L. Said deed was not recorded as required by said section. Had the lien upon the crops been perfected by a suitable memorandum and record, the plaintiff could not then maintain this action in his own name, there having been no assignment from Bagley to plaintiff of the property sold conditionally, nor indorsement of the note sold to him. Crain v. Paine, 4 Cush. 483; French v. Haskins, 9 Gray, 195.

ROSS, J. 1. The contention that the reservation of the crops to be grown upon the premises to Luceba Bagley, until the note now owned by the plaintiff is paid,...