Herrick v. Teachout

• Decision Date: 15 April 1902
• Citation: 74 Vt. 196,52 A. 432
• Court: Vermont Supreme Court
• Parties: HERRICK v. TEACHOUT.

52 A. 432

74 Vt. 196

HERRICK

v. TEACHOUT.

Supreme Court of Vermont. Franklin.

April 15, 1902.

on account of a changed situation, it would be to the mortgagor's interest to have the transaction declared a sale, cannot be considered.

3. V. S. § 981, forbidding appeals to the supreme court in mortgage foreclosure proceedings except by leave of the court, applies only to mortgages which are such on their face, or are recognized as such by the parties, and not to eases where the character of the instrument is in issue.

4. A power of sale in a mortgage is a cumulative remedy, and does not prevent foreclosure.

5. Under the express provisions of V. S. § 2464, an administrator can foreclose a mortgage in favor of his intestate.

Appeal in chancery, Franklin county; Stafford, Chancellor.

Suit by E. D. Herrick, administrator of Luther Herrick, against Albert W. Teachout. From an order dismissing a cross bill filed by defendant, and granting plaintiff the relief prayed for by him, defendant appeals. Affirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ.

H. A. Burt and G. W. Burleson, for orator.

C. G. Austin and A. A. Hall, for defendant.

MUNSON, J. The bill is brought to foreclose the defendant's equity of redemption in certain premises therein described. The cross bill prays for a sale of the premises and payment from its avails. The agreement connected with the transfer was in parol, and is to be ascertained from the findings of the master. The report shows that L. D. Herrick, the orator's intestate, took deeds of the farm in question from the defendant and his wife and the defendant's assignee in insolvency upon an agreement that he would relieve the estate from certain claims, and pay the incumbrances resting upon the farm, and deed the farm to the defendant upon his being reimbursed for these expenditures; It being also agreed that in default of such reimbursement the farm might be sold, and the proceeds be applied in satisfaction of the sums so expended, and the balance, if any, be paid to the defendant. The court of chancery dismissed the cross bill, and decreed a foreclosure in default of payment of the smaller of two sums reported by the master. The defendant appeals. The orator asks no more than an affirmance of the decree. The position of the parties will be better understood if reference be had to some further facts. L. D. Herrick died intestate March 9. 1890, leaving as his only heirs the orator, E. D. Herrick, and Lucy Teachout, the defendant's wife. Mrs. Teachout died February 20, 1897, leaving a will, by which she devised her interest in these premises to her husband. The orator claims that the transaction in question was a mortgage, and that Herrick obtained only a chattel interest in the premises, and not such an interest as would vest in his heirs. The defendant claims that the transaction did not constitute a mortgage, but that Herrick became seised, by virtue of his conveyances, of an interest in the farm equal to the amount expended, which interest vested in his heirs at his death; and that the defendant is now the owner of one-half of that interest by virtue of Lucy Teachout's will, and entitled to a deed thereof upon paying one-half of the amount paid out by Herrick. The orator claims that, inasmuch as this was a mortgage, the appeal was improperly taken, and should...