Hattie M. Gordon And John W. Gordon v. Thomas J. Deavitt

• Decision Date: 08 January 1912
• Citation: 81 A. 1128,85 Vt. 338
• Parties: HATTIE M. GORDON AND JOHN W. GORDON v. THOMAS J. DEAVITT ET AL
• Court: Vermont Supreme Court

81 A. 1128

85 Vt. 338

HATTIE M. GORDON AND JOHN W. GORDON v. THOMAS J. DEAVITT ET AL

Supreme Court of Vermont

January 8, 1912

October Term, 1911.

APPEAL IN CHANCERY, Washington County, September Term, 1910. Heard on the mandate of the Supreme Court recited in 84 Vt. 59, and on defendant's motion for leave to file an answer. Motion overruled and decree of foreclosure for the orators in accordance with said mandate. Defendant Thomas J. Deavitt appealed.

Decree affirmed and cause remanded. Let a new time of redemption be fixed.

John W. Gordon and R. M. Harvey for the orators.

Thomas J. Deavitt and Edward H. Deavitt for the defendant.

Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.

OPINION

WATSON

The mandate from this Court (84 Vt. 59, 78 A. 113) directed that the homestead be set out in accordance with the provisions of the statute, and that the remainder of the premises be appraised, and that the defendants pay for the benefit of the orators the amount of said appraisal, or a part thereof equal to the amount of the redemption, payment and interest, with costs, by a day to be fixed by said court or be foreclosed. These directions were obligatory upon the court of chancery, and proceeding under them, it was not within the power of that court to allow further proceedings on the merits involved in the main issue determined on the demurrer. This being so, the refusal by the chancellor to permit defendant Deavitt to file answer was not error. Sheldon v. Clemmons, 82 Vt. 169, 72 A. 687.

It is further urged that it was error not to refer the cause to a master, or to have a hearing before the chancellor, to ascertain the sum due in equity. But such a reference or hearing (certainly without request, and none is shown in this case) was unnecessary; for the amount of the redemption payment was a matter of record in the case, and to find the interest thereon was a mere matter of computation. It is said however that the rents and profits of the mortgaged premises should have been taken into consideration in fixing the sum due in equity. It is not claimed that the orator has had any of the rents and profits, and the claim that the oratrix has is without foundation. Before and at the time of the foreclosure proceedings on the bank mortgage, Truman R Gordon, the husband of the oratrix, was, and ever since has been, in possession of the entire premises, and occupying the same with his...