Buzzell v. Cummings

• Citation: 18 A. 93,61 Vt. 213
• Parties: LUKE BUZZELL v. WILLIAM H. CUMMINGS
• Decision Date: 17 July 1889
• Court: Vermont Supreme Court

18 A. 93

61 Vt. 213

LUKE BUZZELL v. WILLIAM H. CUMMINGS

Supreme Court of Vermont

July 17, 1889

GENERAL TERM, OCTOBER, 1888.

Trover for the recovery of a water wheel. The case was heard at the June Term, 1887, Powers, J., presiding, upon the report of a referee. Judgment for the plaintiff. Exceptions by the defendant.

The judgment of the County Court is affirmed.

Smith & Sloane, for the defendant.

OPINION

TYLER

The facts in this case are as follows: On the 15th day of September, 1877, Hiram D. Sawyer, of Bath, N.H., being the owner of certain premises in that town upon which was situated a grist mill, on that day sold the premises to William F. Burton for five hundred dollars, and by arrangement between the parties conveyed the same by deed to Rosalind Burton, wife of said William F. Burton.

The deed was dated February 2d, 1878. Fifty dollars of the purchase price was paid by Mrs. Burton at the time of the purchase and six promissory notes, dated Sept. 15th, 1877 for $ 75 each, were given by Burton and wife payable to Sawyer or order, and secured by a mortgage on the same premises, which mortgage was executed by them May 1st, and recorded May 2d, 1878.

An old wooden water wheel then in the mill being insufficient, in March, 1878, said Burton went to St. Johnsbury in this State and bargained with the plaintiff, who was a machinist, for one left hand forty inch giant water wheel with wheel shaft and couplers, under a verbal agreement that the property should remain the plaintiff's until paid for. Twenty or twenty-five dollars were paid by Burton at the time of the purchase and he agreed to give a note on eighteen months time for the remaining sum of $ 229. Before giving the note a quantity of old iron was applied in part payment.

The wheel, shaft and couplings were shipped to Burton about April 1st, 1878, and he some time after took out the old wheel and put in the new one, attaching it to the bulkhead by bolting it to timbers with ordinary iron bolts. The time when this was done does not appear. After it was done Burton operated the mill with the new wheel. June 1st, 1878, after the wheel and fixtures had been put into the mill, the plaintiff took a vendor's lien upon the same from Burton and caused it to be recorded in the town clerk's office in St. Johnsbury. The lien is as follows: "ST. JOHNSBURY, VT., June 1st 1878.

I, the undersigned, William F. Burton of Bath, N.H., have bought of Luke Buzzell of St. Johnsbury, Vermont, one left hand forty inch giant water wheel, with wheel shaft, couplers, etc meaning all the work furnished by said Luke Buzzell at a cost of four hundred and thirty-eight dollars and ten cents, for which I have this day given one promissory note for two hundred and twenty-nine dollars, dated June 1st, 1878, on eighteen months time from date with interest annually, and the balance paid in cash, old iron and discounts.

Now be it known, that the above mentioned water wheel, etc., is, and is to remain the property of the said Luke Buzzell until the above mentioned note and interest are fully cancelled and paid, and if not paid at maturity, Luke Buzzell or his agents shall have the right to peaceably enter the premises and take away said property."

Witness WM. H. HUBBARD. [Signed.] WILLIAM F. BURTON."

In September, 1888, Mrs. Burton separated from her husband and went to live with her father in Bath. She then held the title to the mill property subject to the Sawyer mortgage.

October 31, 1878, Sawyer leased the mill property to Burton, having foreclosed his mortgage and taken actual or constructive possession. Soon after this Mrs. Burton bargained her interest to the defendant and Edward Rand, and conveyed it to Rand and Cummings by quit-claim deed dated November 11, 1878 Cummings paying her $ 65 for her interest, and paying off Sawyer's mortgage and notes, the latter being endorsed "without recourse." At the time of her sale to Cummings Mrs. Burton knew of the plaintiff's lien upon the wheel and fixtures and made no claim to them herself. Cummings had then known this mill for about thirty years, supposed the old wheel was running it and knew nothing about the new wheel at the time of his purchase, but he learned of it soon after and...