George Hunt v. Merton E. Spaulding

• Decision Date: 06 October 1936
• Parties: GEORGE HUNT v. MERTON E. SPAULDING
• Court: Vermont Supreme Court

187 A. 379

108 Vt. 309

GEORGE HUNT v. MERTON E. SPAULDING

Supreme Court of Vermont

October 6, 1936

May Term, 1936.

Questions Not Raised Below---Questions as to Admission of Evidence Held Insufficiently Raised in Chancery Appeal---Necessity of Bill of Exceptions in Chancery Cases---P. L. 1269, 2068---Specific Performance---When Granted---Proof of Con- tract by Oral Evidence---Questions Raised by Appeal in Chancery with No Bill of Exceptions.

1. Question not raised in court below is not for consideration in Supreme Court.

2. Statement in findings to the effect that oral evidence was admitted, subject to defendant's exception that it was inadmissible because the "agreement was parol" and further statement that the transcript is referred to "for the purpose of reviewing the questions raised by exceptions at the trial" are not sufficient on appeal in chancery to save question whether such oral evidence was admissible.

3. Exceptions taken in the trial of chancery cases to be available must be embodied in a bill of exceptions signed and filed in compliance with the requirements of P. L. 1269 and 2068.

4. One in possession of real estate under an oral contract for the conveyance thereof to him, who has made substantial improvements thereon, or cannot for other reasons be placed in statu quo, is entitled to specific performance of such contract, which must be established by oral evidence.

5. Only question raised by appeal in chancery case, where no bill of exceptions is filed, is whether the decree is warranted by the pleadings and supported by the findings.

BILL IN CHANCERY for specific performance of contract for sale of real estate. Defendants filed answer denying making of alleged contract and cross-bill, and plaintiff filed general replication and general denial of cross-bill. Heard on pleadings, oral testimony, and exhibits at the November Term 1935, Lamoille County, Cleary, Chancellor. Decree for the plaintiff. The defendants excepted. The opinion states the case.

Decree affirmed and cause remanded.

W E. Tracy for the defendants.

Clifton G. Parker for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.

OPINION

SLACK

This is a bill for specific performance of a contract for the sale by defendants to plaintiff of certain land and the buildings thereon located in the town of Morristown, this State. The bill alleges that by reason of, and relying upon, such contract, the terms of which are therein set forth the plaintiff took, and has ever since retained, possession of such property, and has expended large sums of money thereon for repairs and permanent improvements, and has purchased adjoining land to which he has no access except over the land in question; that he has performed and offered to perform all obligations imposed upon him by such contract, but that defendants refuse to perform the obligations thereby imposed upon them, and now threaten to take such measures as may be necessary to regain possession of the premises. The defendants filed an answer and a cross bill. In the former they deny the making of such contract, and allege that at the time the plaintiff claims it was made he was, and still is, in possession of such property as their tenant, and not otherwise, and that his rent is long overdue, etc. The cross bill prays for an accounting, an order for the immediate payment of the rent in arrears and a writ of possession. Plaintiff filed a general replication to defendants' answer and an answer in the nature of a general denial to their cross bill. The case was heard on the merits by a chancellor who found and stated the facts and a decree was entered thereon for plaintiff. The defendants appealed.

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