Henry Wells v. Sadie A. Foss

• Decision Date: 02 March 1908
• Citation: 69 A. 155,81 Vt. 15
• Parties: HENRY WELLS v. SADIE A. FOSS
• Court: Vermont Supreme Court

69 A. 155

81 Vt. 15

HENRY WELLS v. SADIE A. FOSS

Supreme Court of Vermont

March 2, 1908

January Term, 1908.

APPEAL IN CHANCERY. Heard on pleadings, master's report, and exceptions thereto, at the March Term, 1907, Washing County Miles, Chancellor. This is a petition to foreclose two mortgages. No question is raised in respect of the first mortgage, "the Cole mortgage." All the material facts regarding the second mortgage, the "Wells mortgage," are stated in the opinion. Defendant's exceptions to the master's report overruled, and decree for the orator, pro forma, for the amount found due by the master on the "Cole mortgage," and for one hundred dollars found due on the "Wells mortgage," with interest from January 1, 1905, and also the seventy-five dollars found by the master to have been paid by the orator as the costs mentioned in the opinion, with interest thereon since August 29, 1904. The defendant appealed.

Decree affirmed and cause remanded with directions to alter the decree so as to exclude from the sum due in equity on the mortgage to Herbert A. Wells the amount paid by the orator as costs under his said recognizances. Let a new time of redemption be fixed. The defendant to recover her costs in this Court.

John G. Wing for the orator.

Present ROWELL, C. J., TYLER, MUNSON, and WATSON, JJ.

OPINION

WATSON

Concerning the Cole mortgage and the sum due in equity thereon no question is made.

At the date of the other mortgage the defendant was owing the orator one hundred dollars, which sum was included in the note secured by that mortgage. This sum with interest thereon since January 1, 1905, is due on the note without question. The note was given for two hundred dollars. The mortgage was executed to Herbert A. Wells, but all the transactions which entered into it were had between the parties to this case. In fact, the orator always owned the note and the mortgage, and they were formally assigned to him by the nominal mortgagee. The orator was permitted to introduce parol evidence, subject to objection, tending to show that the note was given for two hundred dollars, secured by the mortgage, not only to cover the debt due from the defendant to the orator, but also for the purpose of securing the orator for becoming bail by way of recognizance for the defendant, for fifty dollars in each of two suits theretofore brought by her. The ground of the exception to the report is that the evidence tended to vary the terms of the note and mortgage. Its tendency was to show the true character of the mortgage, and it was properly received. Morrill v. Morrill, 53 Vt. 74.

Judgment was rendered against this defendant in both suits, and costs were taxed and allowed against her, for which the orator was liable on his recognizances, in one fifty dollars, and in the other twenty-three dollars and seven cents. These costs not having been paid by her, the attorney for the recovering party demanded payment of orator, and he on August 29, 1904 paid them to the attorney. At the time of this payment the recovering party had deceased and there was no personal representative. The payment was made against the protest of this defendant, she claiming to the orator that he ought not to pay the attorney because the party was deceased and no administrator had been appointed on his estate....