Guy A. Osha v. Lelia M. Higgins, Luther J. Higgins, And Eben O. Avery
| Decision Date | 07 February 1916 |
| Citation | 96 A. 700,90 Vt. 130 |
| Parties | GUY A. OSHA v. LELIA M. HIGGINS, LUTHER J. HIGGINS, AND EBEN O. AVERY |
| Court | Vermont Supreme Court |
October Term, 1915.
APPEAL IN CHANCERY. Heard on the pleadings and findings of fact by the chancellor, at the June Term, 1915, Orange County, Slack Chancellor. Decree for the plaintiff. Defendant Avery appealed.
Decree reversed and cause remanded with directions that a decree be entered that unless the defendants pay to the clerk of the court for the benefit of the plaintiff, the sum due in equity with interest thereon from the date of the decree together with the costs of suit in the court of chancery less the defendants' costs in this Court, within a reasonable time to be fixed by that court, the defendants and each of them, and all persons claiming under them, shall be forever barred of all equity of redemption in the premises.
March M. Wilson for the plaintiff.
Richard A. Hoar and Alland G. Fay for the defendant.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.
The record does not show that the demurrer in the answer of defendant Avery was brought forward for hearing before the case was heard on the merits, so the demurrer stands as waived. Congregational Church v. Cutler, 76 Vt. 338, 57 A. 387.
The amendments to the bill were within the discretion of the chancellor. Some exceptions were taken to rulings on questions of evidence, during the hearing upon the merits, but it does not appear that any exceptions were taken to the report because of such rulings. These questions are therefore not before us. This is so by statute, (P. S. 1268,) in construing which it has been held in many cases that unless saved by exceptions filed to the report, such questions shall be treated as waived. The latest case in which such holding was had, is Hooker, Corser & Mitchell Co. v. Hooker, 89 Vt. 383, 95 A. 649.
In his answer to the bill, Luther J. Higgins, the husband of Lelia M., stated that he had no interest in said real estate, and leaves the plaintiff to his remedy against her. This amounted to a renunciation by him of his marital rights in the property, in consequence of which the sole mortgage deed of the wife to the plaintiff to secure a part of the purchase money, conveyed an equitable interest in the land,--it constituted an equitable mortgage thereon. Frary v Booth, 37 Vt. 78; Buchanan v. Chamberlin, noticed in case last cited, p. 84; Dietrich v. Hutchinson, 81 Vt. 160, 69 A. 661; Blondin v. Brooks, 83 Vt. 472, 76 A. 184. Avery...
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