Canfield v. Hall

• Decision Date: 06 January 1959
• Docket Number: No. 173,173
• Citation: 121 Vt. 52,147 A.2d 886
• Court: Vermont Supreme Court
• Parties: Robert CANFIELD and Charles Canfield v. Frank HALL and Harriet Hall.

Page 886

147 A.2d 886

121 Vt. 52

Robert CANFIELD and Charles Canfield v. Frank HALL and Harriet Hall.

No. 173.

Supreme Court of Vermont.

Jan. 6, 1959.

Manfred W. Ehrich, Jr., Bennington, for plaintiffs.

Bloomer & Bloomer, Rutland, for defendants.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

CLEARY, Chief Justice.

This is a justice ejectment action appealed by the defendants to the Bennington County court. Before trial there the defendants moved to transfer the cause into Equity by the authority of V.S. 47 § 1619. The transfer was refused, the defendants allowed an exception and the cause passed to the Supreme Court before final judgment, pursuant to V.S. 47 § 2124. The only issue here is whether the court below committed harmful error in refusing to transfer the cause into the court of chancery.

The defendants' motion was accompanied by their bill of complaint as required by rule 12 of the county court rules.

The following facts are alleged in the defendants' bill of complaint. On May 14, 1941 James A. Canfield, the then owner of the property in question, leased the premises to the defendants for twenty years, with a right of renewal. In consideration thereof the defendants were to use the premises in a good and husbandlike manner and pay to James A. Campbell, or to his assigns, as rent, an annual sum equal to one percent of the total gross income of any and all business conducted on said premises, such sum to be not less than seventy dollars, payable on the first day of October, each year thereafter. The defendants also agreed to undertake all repairs at their own expense, to pay all taxes, and to carry and pay fire insurance on the property, taken out in the name of the lessor to the amount of not less than $1000. The defendants had the right at any time to alter, change or enlarge the buildings on the premises, or to build new buildings to suit their convenience at their own cost and expense. The defendants have always paid the rent or attempted to do so and have tried to carry out each and every term of the lease.

While James Canfield remained the lessor, he approved of various alterations and additions to the building and loaned the defendants money to make said alterations and repairs, which money has been paid back to James Canfield. The additions and alterations at that time made exceeded the loan by many dollars. With the knowledge, consent, acquiescense, and, at times, help of James Canfield, the defendants converted the building from a school house into a combination restaurant and dwelling. Relying upon the lease of James A. Canfield and his suggestions, help and cooperation in connection therewith, the defendants spent, to wit, $14,000 in betterments on said property.

Upon information and belief the defendants allege that some time, the date of which is unknown to the defendants, the said James Canfield assigned this lease over to the plaintiffs, but subject to the lease. The defendants further allege that they have no adequate remedy at law and that they have been informed and believe and therefore allege upon information and belief that a claim for betterments does not exist in a justice ejectment.

In the oral argument before us plaintiffs' counsel conceded that the defendants' motion and bill should be considered as though the plaintiffs had demurred to it. A demurrer admits, the the purpose of its consideration, facts well pleaded, Gignac v. King, 118 Vt. 413, 416, 111 A.2d 42; Theberge v. Canadian Pacific R. Co., 119 Vt 193, 197, 122 A.2d 848; a demurrer is not aided by facts not appearing in the pleading demurred to, Theberge v. C. P. R., supra; no fact can be considered unless it appears on the face of the bill; allegations in the bill of complaint amounting to conclusions of law are not admitted by a demurrer and are to be disregarded. Hilmer v. Grondahl, 109 Vt. 388-390, 199 A. 255; Smith v. Highway Board, 117 Vt. 343, 345, 91 A.2d 805.

Much of the plaintiffs' brief is devoted to argument of claimed facts that do not appear in the defendants' bill. Such facts cannot be considered.

An action of justice ejectment is statutory in its nature. V.S. 47 § 2008; Hinsman v. Marble Savings Bank, 102 Vt. 217, 222, 147 A. 270, 134 A. 635. The statute gives a summary remedy to persons entitled to possession which is wrongfully withheld, and was intended as a substitute for the technical procedure of the common law action of ejectment. Horan v. Thomas, 60 Vt. 325, 329, 13 A. 567. There is no provision in the statutes which affords the defendants the relief which they seek. The briefs of both parties agree and under the facts as alleged in the bill of complaint, we also agree that the defendants are not entitled to recover in this action of justice ejectment for the betterments they have made to the property.

Because they have no adequate remedy at law the defendants pray that they be granted relief in equity for the betterments they claim to have made to the property. No authorities have...