Clifford Stanley Spencer v. Lyman Falls Power Co.

• Decision Date: 04 January 1938
• Citation: 196 A. 276,109 Vt. 294
• Parties: CLIFFORD STANLEY SPENCER v. LYMAN FALLS POWER COMPANY ET AL
• Court: Vermont Supreme Court

196 A. 276

109 Vt. 294

CLIFFORD STANLEY SPENCER v. LYMAN FALLS POWER COMPANY ET AL

Supreme Court of Vermont

January 4, 1938

November Term, 1937.

Suit to Compel Reconveyance of Real Estate Deeded While Minor---Facts Held Immaterial---Lack of Decree of Distribution in Estate of Testator Devising to Plaintiff Immaterial---Vesting of Title to Devised Real Estate---Conveyance by Devisee Where No Decree of Distribution---Deed of Minor as Passing Title---Deed of Infant Voidable---Contract of Infant Binding If Not Disaffirmed---Deed of Infant Valid Until Avoided and Confirmation Inferred from Silence---Reasonable Time for Disaffirmance as Question of Fact---Unreasonable Delay in Disaffirming Assumed to Have Been Inferred---Bringing Suit for Reconveyance as Disaffirmance---Statute of Limitations as Bar to Suit---Possession by Grantee Adverse to Infant Grantor---Possession Inferred to Be under Claim of Right---Reconveyance Denied by Reason of Improvements by One Holding Under Grantee---Effect of Failure to File Bill of Exceptions---Clerk of Court Not Authorized to Note Exceptions---No Duty of Clerk to Notify Chancellor Exceptions Requested---Docket Entries as to Filing of Exceptions Not Misleading---Extent of Duty of Clerk of Court to Keep Counsel Informed of Condition of Docket---Failure to File Bill of Exceptions Held No Ground for New Trial---Remand for Allowance of Exceptions Not Authorized by P. L. 1331 Permitting Amendment Thereof on Remand---Supreme Court without Jurisdiction to Consider Exceptions Allowed on Remand after Running of Time for Filing Bill.

1. In suit in equity to compel reconveyance of real estate deeded by plaintiff while a minor, facts that plaintiff's mother, who also signed deed, did so as administratrix of her husband's estate and not as plaintiff's guardian that she falsely assured purchaser she was such administratrix and had authority to convey the land, that she never filed account as guardian nor obtained license to sell that in dividing proceeds of sale between plaintiff and his sister she gave plaintiff less than his share, were all immaterial to issue.

2. In such suit, fact that decree of distribution had never been made in estate of plaintiff's father, who devised land in question to plaintiff and his sister, was immaterial, since upon death of father title at once became vested in plaintiff, subject only to lien of executor for payment of debts and expenses and since it was found that personal property, which was primarily chargeable, was sufficient to pay all claims, while it could be presumed from lapse of eight years from death of testator to date of sale and seventeen years thereafter to date when suit was brought without objection being made by executor, that any lien he had for expenses had been satisfied.

3. Title to devised real estate becomes vested in devisee upon death of testator subject only to lien of executor for payment of debts and administration expenses of testator's estate.

4. Devisee of real estate had vested interest which could be conveyed by deed, though no decree of distribution had been made in estate of testator making devise.

5. Deed of minor passed title to real estate described therein.

6. Deed of infant is voidable, and may be ratified or disaffirmed by him after coming of full age.

7. Where contract of infant is voidable only by him on his coming of age, he is bound by, and presumed to ratify it, if he does not, within a reasonable time after attaining full age, give notice of disaffirmance or otherwise reject result.

8. Deed executed and delivered by infant remains good and valid until it is avoided by him, and unless he makes known his determination to rescind within reasonable time after attaining majority, silence on his part, while grantee, or any one under him, is claiming, holding and occupying under the contract, is an acquiescence from which confirmation of contract will be inferred.

9. What is reasonable time within which one who has conveyed real estate while an infant may, after attaining majority, make known his intention to avoid conveyance, depends upon circumstances and is ordinarily, at least, question of fact for trier of cause.

10. In suit in equity to compel reconveyance of real estate deeded by plaintiff while a minor, though there was no specific finding that unreasonable time had elapsed after plaintiff attained majority before he attempted to disaffirm, Supreme Court assumed in support of decree for defendants that chancellor so inferred, as he might fairly have done under circumstances, where over seventeen years elapsed from time plaintiff attained majority until he attempted to disaffirm by bringing suit.

11. Bringing of suit to compel reconveyance of real estate deeded by plaintiff while a minor may be treated as an attempt to disaffirm conveyance.

12. Plaintiff in suit in equity to compel reconveyance of real estate deeded by him while a minor was not entitled to decree in his favor where his grantee and those holding under such grantee had had notorious, visible, exclusive and continuous possession of such real estate for period in excess of fifteen-year statute of limitations after plaintiff became of age and before he attempted to avoid conveyance.

13. Possession of real estate by grantee under deed of a minor or by those holding under such grantee, was adverse to grantor after he attained majority.

14. That possession of real estate was under claim of right could be inferred from fact that it was notorious, visible, exclusive and continuous for more than fifteen years.

15. Plaintiff in suit in equity to compel reconveyance of real estate deeded by him while a minor was not entitled to decree in his favor where it was found that a large amount of money had been expended for improvements by one of those holding under his grantee and was inferable, from finding that plaintiff had made visits in vicinity of real estate since attaining full age, that he knew defendants had notorious, visible, exclusive and continuous possession and that he was aware of improvements made.

16. In suit in equity, where no bill of exceptions signed by chancellor is filed as required by P. L. 2068 and 1269, Supreme Court has no jurisdiction to pass upon questions sought to be raised by exceptions to findings of fact.

17. In suit in equity, allowance of exceptions rests with chancellor alone, and clerk of court has no authority to note exceptions to findings of fact.

18. In suit in equity, clerk of court had no duty to notify chancellor that exceptions to findings of fact were requested, since it is incumbent on losing party to see that his exceptions are presented to and signed by chancellor within thirty days from filing of decree, as required by P. L. 2068 and 1272.

19. In suit in equity, where plaintiff filed list of exceptions to findings of chancellor before decree was filed, held that he could not have been misled by docket entry that such exceptions were filed into belief that his exceptions had been completed, since such docket entry bore earlier date than entry as to filing of decree, so that it must have referred to list of exceptions and could not have referred to filing of bill of exceptions signed by chancellor.

20. While it is incumbent upon clerk of court of chancery under P. L. 1372 and county court rule 5, which is applicable to proceedings in chancery, to give immediate written notice to counsel of record of all orders, judgments or other papers in cause filed in his office, it is not his duty otherwise to keep counsel informed of condition of docket, nor to give notice that bills of exceptions have not been signed and filed.

21. In suit in equity, petition for new trial alleging that failure to file bill of exceptions as required by statute was due to accident and mistake of counsel, caused by neglect of clerk of court to keep him informed as to true state of docket in case, was denied where it appeared that list of exceptions to findings was filed before decretal order of chancellor was filed and that plaintiff was notified of filing of such order, wrote to clerk asking him to note exceptions to judgment, to chancellor's refusal to find as requested and to failure of chancellor to note exceptions, and within twenty days allotted by P. L. 1321 filed motion for appeal, but never presented bill of exceptions to chancellor for signature.

22. Supreme Court had no authority, under P. L. 1331, providing that chancellor may, after mandate has been sent down, permit party to amend exceptions, to remand cause in chancery with direction to chancellor to allow exceptions where bill of exceptions had not been duly presented to chancellor for signature, since to permit amendment there must be something to amend.

23. Supreme Court could not remand cause in chancery with direction that chancellor allow exceptions where statutory period for signing and filing bill of exceptions had passed, since so long as decree appealed from was upon the record it would be without jurisdiction to consider questions presented by exceptions so allowed.

APPEAL IN CHANCERY. Bill to compel reconveyance of real estate deeded by plaintiff while a minor. The defendants demurred and filed answer setting up laches and statute of limitations. Heard on pleadings, oral evidence and exhibits, and facts found by the chancellor at the April Term, 1937, Essex County, Cleary, Chancellor. Decree dismissing bill. The plaintiff appealed, and in Supreme Court filed petition for new trial and motion to remand cause with direction to chancellor to allow and note exceptions as requested. The opinion states the case.

Decree affirmed.

Harry B. Amey for the plaintiff.

Porter, Witters & Longmoore for the defendants.

Present POWERS, C. J., SLACK, M...