Blanchard v. Knights
| Decision Date | 05 November 1958 |
| Docket Number | No. 169,169 |
| Citation | 146 A.2d 173,121 Vt. 29 |
| Parties | Ellen BLANCHARD v. Ward A. KNIGHTS, Hazel B. Knights et al. |
| Court | Vermont Supreme Court |
Waldo C. Holden, Bennington, for plaintiff.
Manfred W. Ehrich, Jr., Bennington, for defendants.
Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.
The petitioner, Ellen Blanchard, is seeking 'to foreclose' the 'equity of redemption' of the petitionees, by reason of certain provisions pertaining to her maintenance and support appearing in a deed from her to the petitionees, Knights. Following hearing below the Chancellor entered a decree dismissing the bill of complaint. The petitioner is here on her exceptions to the decree and to certain findings made or refused by the Chancellor.
We start with the situation as disclosed by those findings which have been unattacked by exception.
On March 15, 1947 the petitioner conveyed by warranty deed to Ward A. and Hazel B. Knights her son-in-law and daughter respectively, three described parcels of land in Pownal, Vermont. In this conveyance, following the covenants of warranty, appears the language upon which the petitioner bases her claim for relief; the grantor, it says, warrants the premises 'free from every encumbrance except that the consideration for this deed is the agreement on the part of the said grantees, for themselves, their heirs and assigns to support and maintain said grantor in sickness and health on parcel I hereinabove described, and in cash the home on said premises should be destroyed by fire, then to maintain and support said grantor in some suitable home in said Town of Pownal.
'It is further mutually agreed that the said grantees are to pay the funeral expenses and burial expenses of the said grantor and to pay the taxes assessed on the within described premises, to make all necessary repairs at their sole cost and expense and to keep the buildings on said described premises suitably insured at their sole cost and expense.'
'It is further mutually agreed that this agreement is to be binding upon the heirs, executors, administrators and assigns of the said grantees.'
The grantees went into possession under the foregoing conveyance (which has been duly recorded in the land records) and the petitioner lived with them on 'Parcel I' without complaint for a number of years. In the fall of 1947 and again in the summer of 1950 the Knights conveyed away a portion of the 'Second Parcel' to petitionees Barber. The Barbers, in turn conveyed a portion of the premises conveyed them, to petitionees Derry.
Following these transactions, the petitioner, in December 1953, went to live with her granddaughter, Dorothy Hewson. This was done by an agreement between Ellen Blanchard and the Knights. Under it, the petitionees were to pay, and did pay, the petitioner's board at the rate of $10 a week to the Hewsons. This arrangement, after about two years, was succeeded by various others, each separately and mutually entered into, whereby the petitioner made her home with different grandchildren or relatives, each of whom were paid by the Knights for the petitioner's room and board. In all these moves a friendly relationship prevailed between the petitionees Knights and the petitioner. She frequently visited them during the period, and they maintained, at all times, a room for her occupancy at their home on 'Parcel I'.
During all this time, Ellen Blanchard had a bank account of her own which stood in the joint names of herself and her son, William. From time to time, since 1948, she directed him to pay various odd bills from this account. In no instance where this was done was there any request ever made beforehand of the Knights by Ellen Blanchard for payment of the bills in question nor was any demand for reimbursement made, prior to suit, after she had paid them. Any withdrawal from the joint account necessarily decreased the interest of the son, William, as joint tenant.
In August 1957, William was appointed guardian for his mother who was then seventy-five years of age. Early in the spring of 1957 the petitioner had suffered a slight stroke and in August the petitioner was moved to the Sourdiffe Convalescent Home in Bennington. This brings us to the first exception which we wish to consider. The Chancellor found ( #15) that the moving of the petitioner to the Sourdiffe Convalescent Home was made without consultation with the petitionees Knights. The petitioner excepted to this finding as being 'irrelevant to any issue in this case and the testimony of Olive Morey in this regard is uncontradicted.' Taking this exception at face value it avails the petitioner nothing, for a finding, even if unwarranted, is not ground for reversal where it does not pertain to an essential element of the case. Partridge v. Cole, 98 Vt. 373, 378, 127 A. 653; Turner v. Bragg, 113 Vt. 393, 398, 35 A.2d 356; Cole v. Cole, 117 Vt. 354, 359, 91 A.2d 819. The real question, as between the petitioner and the Knights, was not whether the latter were 'consulted' when the petitioner was put in the Convalescent home, but whether they agreed that she might be placed there. Neither the evidence nor the findings support such a view. The evidence was that the petitioner could have been cared for in a private home if well-attended. The most that the Knights ever agreed to was that if the petitioner 'had' to be moved to the Convalescent Home 'it was all right.' Thus the basis of any consent by the Knights is lacking. Thus for not one but for several reasons the exception to finding #15 is not sustained.
The petitioner excepted to the following finding:
on the following grounds:
'a. The finding that 'payment has not been refused' is a conclusion of law not supported by previous findings.
The foregoing finding related to one of the places where the petitioner stayed in her various moves and to miscellaneous bills which William Blanchard paid at his mother's direction and for which reimbursement is now claimed. There was testimony that the petitioner never complained to petitionee Knights about the payment of any bills and Knights himself testified that he had never refused to pay any bill presented to him for the care and support of Mrs. Blanchard. As applied to this case the appellant has failed to point out why a finding based on this testimony is a conclusion of law. We can not see that it is.
Finding #17 made by the Chancellor reads as follows:
The petitioner's exception to the foregoing points out no respect in which the finding is improper. It recognizes that the court might find all that it did and more besides: the balances due should have been included as well, the petitioner claims. A failure to find upon proper request, is to be dealt with as such. Nothing in the petitioner's exception attacks the finding as made.
The petitioner also excepted to findings #21 and 24(b) which read as follows:
'24(b) That the petitionees, Knights, have not breached their agreement with the petitioner under the terms of the deed upon which this action was brought.'
All that the petitioner's attorney says in his brief as to these findings is this:
'As to non-refusal to pay any obligations and as to non-breach of the agreement are clearly conclusions not based on subordinate findings, which we submit, are in direct conflict with requested findings fully supported, and with the law as given above.'
In the light of this statement, we will move on to the requested findings, and after dealing with them, we will then be in a position to determine whether the decree, or any conclusions appearing in the findings leading thereto, are supported by the facts found and the law applicable thereto.
The first exceptions briefed in this group are to requested findings #24 and #25. By these requests the petitioner sought to have the Chancellor find the amounts of certain expenditures claimed to have been made from a joint account mentioned earlier. The petitioner claimed that as to these she was entitled to reimbursement. These findings were properly refused for the reason that the exhibits upon which they would have to be based were excluded from the evidence. The petitioner argues that the offered exhibits were improperly excluded. If they were, no exception was taken to the Chancellor's action in so doing. Moreover the offered exhibits, and evidence in connection therewith, failed to disclose what expenditures were made before and what after the petitioner left the premises. In addition the bills were never rendered to the Knights before payment and Mrs. Blanchard never asked the Knights to pay them. The exceptions to the Chancellor's refusal to find as requested in #24 and #25 are without merit and are not sustained.
The petitioner excepted to the Chancellor's refusal to find as requested in regard to repairs. The requests were as follows:
The only finding made by the Chancellor on this subject was as follows:
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