Hunt v. Davis

• Decision Date: 24 February 1916
• Citation: 96 A. 814,90 Vt. 153
• Parties: HUNT v. DAVIS et al.
• Court: Vermont Supreme Court

96 A. 814

90 Vt. 153

HUNT

v. DAVIS et al.

Supreme Court of Vermont. Essex.

Feb. 24, 1916.

Appeal in Chancery, Essex County; William H. Taylor, Chancellor.

Suit by George L. Hunt against Addie B. Davis and others. Decree for orator on hearing on demurrer to the amended petition, and defendants appeal. Cause remanded with mandate to affirm the decree unless further proceedings be applied for and permitted.

George L. Hunt, of Montpelier, pro se. Young & Young, of Newport, for defendants.

MUNSON, J. The property in question is the place occupied as a homestead by George W. Davis and his wife, Addie B. There were two mortgages on the property, the first signed by George W. and his wife, and the second by George W. alone. One Sweeney became the owner of both mortgages, and obtained a decree of foreclosure on both, which was invalid as against the rights of Addie B. After the equity expired Sweeney conveyed the property to Edward E. Davis, with a warranty against all persons claiming by, through or under him; and Edward E. conveyed the same to George W. by a deed conditioned upon the payment of a certain sum. Mrs. Davis afterwards brought a bill against George W. Davis and Edward E. Davis to secure her homestead right, and prevailed in the litigation. A fuller statement of the title and proceedings will be found in Davis v. Davis, 81 Vt. 259, 69 Atl. 876, 130 Am. St. Rep. 1035.

The orator in this suit was the solicitor of Mrs. Davis in the proceeding to secure her homestead, and provided part of the means with which she redeemed the property from the first mortgage under the terms of her decree. He now seeks to secure a repayment of the sum so advanced and other charges against Mrs. Davis through an application of the doctrine of subrogation. Sweeney's decree gave him the title to the whole property, with the mortgage interests merged, subject, however, to this future assertion of the homestead right. The relief of Mrs. Davis could not be accomplished by setting out the homestead; for Sweeney was entitled to hold his first mortgage security on all the property until redeemed. So the two mortgage interests were ascertained and separated by an accounting, and Mrs. Davis was allowed to redeem the property by paying the amount due on the first mortgage. The Sweeney decree was valid as to the first mortgage; for that mortgage was signed by Mrs. Davis and covered the homestead. The decree was invalid as to the second mortgage; for it held the homestead to satisfy an incumbrance which Mrs. Davis had not assented to. But the second mortgage was good as a second lien on whatever there might be outside the homestead which was not required for the satisfaction of the first mortgage. So the Sweeney decree was set aside as to the second mortgage only; and, after the separation of the two mortgage interests by an accounting as a basis for a redemption of the property from the first mortgage to secure the homestead right, the decree was affirmed in other respects. This partial affirmance left unimpaired the foreclosure of the second mortgage as to any property there may have been outside the homestead and not absorbed in satisfying the first mortgage. If there is such a margin, George W. Davis, the husband, is now the owner of it by successive conveyances from Sweeney, subject to the conditional right of Edward E. Davis, his immediate grantor.

The bill as originally filed and demurred to stated that the orator, for and at the request of Addle B. Davis, paid to the clerk $162 to redeem the premises from the first mortgage, and charged that amount to her on book account; that the disbursements made and services rendered in the prosecution of the suit amounted to $95 and $485, respectively; that the orator has requested Mrs. Davis to secure him for these charges by assigning to him her right, title, and interest in the premises acquired by virtue of this redemption, excepting her homestead right therein; and that she has refused so to do. The bill as thus framed was held insufficient and dismissed. This entry was stricken off on application, and the orator had leave to amend his bill, which he did by setting up a writing executed by Mrs. Davis two days before the payment of the redemption money. The agreement is for an expressed consideration of $162 paid to her full satisfaction by the orator, and the language of the undertaking is as follows:

"As soon as I shall become empowered to sell or mortgage the land and premises hereinafter described, or any right, title, or interest therein, I will, when thereunto by said George L. Hunt requested, execute and deliver to him a good and valid first mortgage deed of said land and premises, or of such right, title, or interest therein, as security for the repayment of said abovementioned sum of money, and as security for the payment of whatever I may then be owing said George L. Hunt and the firm of Amey & Hunt for legal services and disbursement."

The bill alleges that the orator made the payment in pursuance of this promise and agreement.

The prayer of the bill, both originally and as amended, is that the orator be subrogated to all the original rights of...