Davis v. Davis

• Decision Date: 25 May 1908
• Citation: 69 A. 876,81 Vt. 259
• Court: Vermont Supreme Court
• Parties: DAVIS et al. v. DAVIS et al.

69 A. 876

81 Vt. 259

DAVIS et al.

v. DAVIS et al.

Supreme Court of Vermont. Special Term at St. Johnsbury.

May 25, 1908.

Appeal in Chancery, Essex County; Wm. H. Taylor, Chancellor.

Bill by Addie B. Davis and others against George W. Davis and another to secure a homestead. Judgment of dismissal, and oratrices appeal. Reversed and remanded, with directions.

Argued before ROWELL, C. J., and MUNSON and WATSON, JJ.

George L. Hunt, for appellants. H. W. Blake, for appellees.

MUNSON, J. The oratrices are the wife and minor children of the defendant George W. Davis, and the bill is brought to secure a homestead right in certain premises, which Joseph French, the father of the oratrix Addie, conveyed to the defendant George in 1886, by a deed conditioned to secure the grantor's support. It is alleged and admitted that, from the receipt of this conveyance until February, 1906, the property was kept by the defendant George as his homestead, and occupied as such by himself and his family, and that the oratrix Addie has ever since continued to live on the premises with her children, claiming a homestead right therein. In December, 1890, the defendant George Davis and his wife, the oratrix Addie, executed a mortgage of the premises to one Alvin Bartlett. In 1897 W. H. Silsby, the guardian of Joseph French, being duly licensed to sell the real estate of his ward, agreed with Davis to deed him French's interest in the premises on the payment of $350, and placed a deed thereof in the hands of Porter H. Dale, his attorney, to be delivered to Davis on the receipt of that sum. Davis failed to make the payment, and the deed remained in Dale's hands. In June, 1899, Davis gave Silsby a writing, by which he agreed to pay him $350 in settlement of French's claim, in installments of $10 a month. Prior to September 14, 1900, installments aggregating $120 were received by Dale, and forwarded to Silsby. Silsby afterwards pressed Davis for further payments on this agreement, and Davis then arranged with Dale to pay the balance of the claim, and take a mortgage to secure the sum advanced. March 25, 1901, Dale caused Silsby's deed to Davis to be recorded, paid Silsby $256 in settlement, and took Davis' note for that amount, and a mortgage, securing the same, signed by Davis alone. Dale subsequently assigned this mortgage to one Sweeney, who also became the owner of the Bartlett mortgage. In August, 1902, Sweeney brought a petition of foreclosure on both the mortgages, making the oratrix Addie a party defendant with her husband; and she appeared by solicitor, but made no answer, and a decree of foreclosure covering both the mortgages was taken against both defendants at the March term, 1903; and this became absolute April 8, 1904. Sweeney conveyed the premises to the defendant Edward E. Davis, by a deed dated April 29, 1904, in which the usual covenant of warranty was limited, by adding the words "against all persons claiming by, through or under me." The defendant Edward took this deed at the request of defendant George, and the property was conveyed to George on the following day by a deed conditioned for the payment of $635. The defendants claim that the homestead is properly holden for the payment of the entire sum.

The defendants argue the case as made by bill and demurrer, by bill and answer, and by bill, answer, and findings; but a consideration of the case as finally presented will dispose of all the questions raised. In Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074, 87 Am. St. Rep. 704, after a full consideration of Whiteman v. Field, 53 Vt. 554, the case of Abell v. Lothrop, 47 Vt. 375, was declared to be undoubted law. In the case thus referred to the husband had mortgaged the premises, by his sole deed, to secure an indebtedness then created, and the mortgage had been foreclosed, and a writ of possession taken out. The bill was brought in the names of the husband and his wife and minor children, and alleged a homestead interest in the premises, and prayed for the appointment of commissioners to set out the homestead. It was held that the title to the property remained as if no mortgage had been executed, and that the orators were entitled to relief. In Martin v. Harrington, above cited, the occupancy of the premises as a homestead had continued, but the wife had died leaving no children and it was claimed that the mortgage became...