Edmond M. Pennock Et Ux. v. Clair D. Goodrich Et Ux

• Decision Date: 08 May 1929
• Parties: EDMOND M. PENNOCK ET UX. v. CLAIR D. GOODRICH ET UX
• Court: Vermont Supreme Court

146 A. 1

102 Vt. 68

EDMOND M. PENNOCK ET UX. v. CLAIR D. GOODRICH ET UX

Supreme Court of Vermont

May 8, 1929

November Term, 1928.

Judgment---Status as to Admissibility in Subsequent Suit---Reformation---Disposition of Cause in Supreme Court by Remanding To Amend Bill.

1. In suit to restrain action at law for breach of covenant, in that there was existing right of way over land, which, by mistake, was not reserved in deed thereof, held that findings of fact and decree in previous suit brought by third person against plaintiffs and defendants, establishing such third person's right to way as against them, were not determinative in plaintiffs favor as against any liability by them to defendants in latter's action at law for alleged covenant broken, where such liability was not made an issue in previous chancery suit, hence such findings and decree were properly excluded, suit for reformation being between defendants in previous chancery suit, and plaintiff therein not being a party in present suit.

2. Where reformation of deed was only relief sought by allegations in bill, such relief could be had only when a case therefor was established beyond a reasonable doubt.

3. Under circumstances of case, although no error appears upon record and decree would need to be affirmed, in order that controversy may be determined on equitable principles Supreme Court reverses decree pro forma and remands cause with leave to plaintiffs to apply within reasonable time, for permission to amend their bill, on basis of right of way by necessity, or by implied covenant in deed from plaintiffs to defendants reserving right of way over land conveyed for benefit of third person as now held or possessed by him.

APPEAL IN CHANCERY. Heard on pleadings and findings of fact made by the chancellor in vacation after the September Term, 1927 Rutland County, Buttles, Chancellor. Plaintiffs' bill dismissed with costs. The plaintiffs appealed. The opinion states the case. Decree reversed pro forma with leave to apply for permission to amend. Decree to be affirmed if such application not made within reasonable time.

Novak Bloomer & Spero for the plaintiffs.

Jones & Jones & Charles L. Howe for the defendants.

Present WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

WATSON

This is an action in equity, in which the facts were found and filed by the chancellor. On the facts thus of record, the plaintiffs' bill was dismissed with costs. From this order and decree plaintiffs appealed, and thereon the case is here for review.

In their brief, plaintiffs say the case resolves itself into four issues: (1) Shall the previous decree bind all parties including the co-defendants? (2) Shall knowledge of the road by defendants bind them in equity? (3) Shall a way of necessity release the plaintiffs from liability? (4) Are the findings and refusals to find substantiated by the evidence?

Defendants claim in their brief that there is only one issue in this case, and that issue is: Was the reservation or exception of a right of way omitted by mistake from the deed of December 10, 1918 (Defendants' Exhibit A) at the time it was executed, and if so should that deed be reformed and corrected to include such reservation or exception.

We think defendants' claim in this respect, is borne out by the bill and answer in the case, and we treat the case accordingly.

It appears from the findings that on June 18, 1918, the plaintiffs were the owners of certain lands and premises located in the town of Rutland, which lands were known as the Capron Farm and the Howard Lot; that the Capron Farm is adjacent to and borders on the "Post Road," so-called, and the Howard Lot is located in the rear of the Capron Farm; that on June 18, 1918, the Pennocks entered into a written contract or agreement for a deed with one Henry Peryea under the terms of which the Pennocks agreed to sell and Peryea to buy the Howard Lot, and Peryea went into possession thereof; that said agreement contained the following provision: "The party of the second part is to have the right of way across other premises of the parties of the first part at reasonable and proper times." This agreement for a deed was duly recorded in the town of Rutland prior to the conveyance of the Capron Farm by the Pennocks to the Goodriches as hereinafter stated. There was no highway which borders on the Howard Lot.

The Pennocks retained title to and possession of the Capron Farm until December 10, 1918, when they conveyed it to Clair D. Goodrich and Eva I. Goodrich, his wife.

There is an old and more or less distinct roadway leading across the Capron Farm to the Howard Lot. This roadway was used by Mr. Pennock when he had title to both parcels, and the apparent age of the roadway indicates that it was used by his predecessors in title. There is no right of way appurtenant to the Howard Lot across the land of others adjacent to that lot, exclusive of the Capron Farm and leading to the "Post Road."

In the early part of 1919, the Goodriches prevented Peryea from crossing the Capron Farm to get to the Howard Lot. Their action in so doing was subsequently...