Hyde Park Lumber Company v. B. A. Hunt, Nettie B. Hunt Bertie Hunt Sheldon And John Sheldon
| Decision Date | 10 October 1916 |
| Citation | 98 A. 907,90 Vt. 435 |
| Parties | HYDE PARK LUMBER COMPANY v. B. A. HUNT, NETTIE B. HUNT BERTIE HUNT SHELDON AND JOHN SHELDON |
| Court | Vermont Supreme Court |
May Term, 1916.
APPEAL IN CHANCERY. The original bill was brought to remove certain alleged clouds upon the plaintiff's title. The defendants filed demurrers and motions to dismiss, which were overruled with leave to answer. Thereafter the defendants filed their answers, and incorporated therein cross bills, praying for affirmative relief. No answers were filed to the cross bills. The case was heard on plaintiff's motion to dismiss the original bill at the June Term, 1911, Lamoille County, Miles Chancellor. Decree dismissing the bill with costs to the defendants. The defendant Nettie B. Hunt appealed. The opinion states the case.
Decree affirmed and cause remanded.
J W. Redmond and R. W. Hulburd for the orator.
Present: MUNSON, C. J., WATSON, HASELTON, and TAYLOR, JJ.
This case is here on the appeal of defendant Nettie B. Hunt from a decree dismissing the bill with costs to defendants. The original bill is a bill to remove a cloud from the title of certain premises claimed by plaintiff by foreclosure of two mortages, one executed by defendant Hunt and his wife, Nettie B. Hunt, covering their homestead, and the other executed by Hunt alone. It is alleged that the petition to foreclose the former mortgage was brought to the December Term, 1907, of the court of chancery for Lamoille County and that the decree therein became absolute January 1, 1909; that the petition to foreclose the latter mortgage was brought to the June Term 1908; of said court; that the decree therein, made December 1, 1909, limited the time of redemption to December 1, 1910; that plaintiff had taken possession as owner in fee simple of all of said premises except the homestead which was suffered to be occupied by the said Nettie B. The bill was filed August 16, 1910.
Among the grievances complained of, plaintiff alleges that B. A. Hunt, for the purpose of embarrassing plaintiff and casting a doubt upon its title to the premises, by a deed of warranty without consideration and purporting to be dated August 14, 1907, conveyed the premises in question, except the homestead, to his daughter, the defendant Bertie A. Hunt-Sheldon; that said deed was not recorded until July 16, 1909; that plaintiff was ignorant of the existence of said deed until after it was recorded; that defendant Hunt has sought to embarrass plaintiff by publicly announcing that its title to the premises was not valid, that service of process had not been properly made and that it was unsafe for anyone to purchase the property because of the defect in title; and that said Hunt and Bertie Hunt-Sheldon threaten to make other conveyances of the premises, and to bring suit against any purchaser of the premises from plaintiff or any person entering thereon under authority of the plaintiff and also to institute proceedings against the plaintiff in relation thereto.
Plaintiff was granted an injunction restraining defendants from interfering with its possession of the premises and from conveying or incumbering the same, and also from instituting any proceeding against it, at law or in equity, touching the subject matter of the bill, or the property described therein, until further order.
The case was first heard on defendant's several demurrers and motions to dismiss the bill, which were overruled with leave to defendants to answer. On February 16, 1911, defendants filed several answers. It will be sufficient for present purposes to consider that of the appellant. She admits that Hunt has announced that plaintiff's title to the property was invalid as against her, giving as a reason that service was not made on the necessary parties in the foreclosure proceedings, and that it was unsafe for anyone to purchase the property of the plaintiff because of the uncertainty of its title. She asserts that Hunt had a lawful right to do this, as the plaintiff has not valid title as against her. She admits the conveyance by Hunt to Bertie A. Hunt-Sheldon but denies that it was made to embarrass plaintiff or that it was without consideration. She alleges that in consideration of the conveyance the said Bertie A. agreed to pay Hunt's indebtedness secured by incumbrances on the property, and that the said Bertie A. went into immediate possession of the premises and remained in open and notorious possession until she conveyed the same to the defendant on the 7th day of September, 1908. She further alleges that on said last named date said Bertie A. conveyed to her all the property covered by Hunt's prior conveyance; that she immediately went into and has retained possession of all of said property except certain specified portions which plaintiff, against her protest has occupied as mortgagee; that as to the Newton farm described in plaintiff's bill, situated in the town of Eden, Vt., one Shatney held title of record and was in open possession from August 29, 1905, to August 21, 1909, when he conveyed the same to defendant, who the same day caused her deed to be recorded in the land records of said town and went into and has retained possession thereof hitherto.
Defendant denies that knowledge of the deed from Hunt to Bertie A. was concealed from plaintiff and alleges that plaintiff became informed thereof. She denies any intention on the part of the defendants to hinder or embarrass the plaintiff in its rights, but alleges that they intend to litigate their rights if necessary to obtain the property by redemption. By way of cross bill against the plaintiff incorporated in the answer as provided by chancery rule 27, defendant alleges title in herself to the premises, that she is in possession of part thereof, that plaintiff is in possession of other portions of the premises receiving the rents and profits, that plaintiff has removed therefrom a large amount of valuable timber and committed waste by stripping the premises of a large amount of small timber, that plaintiff has damaged the machinery in the mill on the premises by negligent use thereof, and that she has demanded an accounting which has been refused. She prays for an accounting and for an opportunity to redeem and offers to pay what shall thereupon appear to remain due on said mortgages.
On plaintiff's application time to answer the cross bill was extended to May 1, 1911; but no answer thereto was filed. At the June Term, 1911, plaintiff moved to dismiss its bill with costs, which was resisted by defendants. On hearing the chancellor held that plaintiff had the right to dismiss its bill as a matter of course, and accordingly dismissed the bill with costs.
We know of no reported case in this State touching the right of a plaintiff in chancery to have his bill dismissed when defendant has filed a cross bill. The general rule seems to be that the court will dismiss his bill with costs on plaintiff's motion, as for want of prosecution, unless something has been done in the case which entitles the defendant, on equitable grounds, to have the cause finally disposed of on the merits. If there has been a decree or other proceeding whereby the defendant's position has been changed and he has acquired rights which did not exist, or which had not been determined when the suit was brought, and which render it equitable that these rights should be fully secured by further proceedings in the case, the court, at defendant's request, will retain the cause for a decision on the merits. The action to be taken depends upon whether anything has been done by the court or the parties which has changed the position in which the parties were when the suit was begun. Something more than the incidental annoyance of a second suit for the same cause is required to prevent the decree allowing a dismissal on payment of defendant's costs. The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant where he stood if the suit had not been instituted, and there must be some manifest legal prejudice to the defendant's rights to warrant a denial of the motion to discontinue. If the defendant has acquired some right which might be lost or rendered less efficient by the discontinuance, then the court, in the exercise of a sound discretion, may deny the application. Hollingsworth & Vose Co. v. Foxborough, etc., Dist., 171 Mass. 450, 50 N.E. 1037; Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 54 N.E. 833; McQuesten v. Commonwealth, 198 Mass. 172, 83 N.E. 1037; Kyle et al. v. Reynolds et al., 211 Mass. 110, 97 N.E. 614, and cases there cited; Chicago & A. R. R. Co. v. Union Rolling Mill Co., 109 U.S. 702, 27 L.Ed. 1081, 3 S.Ct. 594; Pullman Palace Car Co. v. Central Trans. Co., 171 U.S. 138, 43 L.Ed. 108; Conner v. Drake, 1 Ohio St. 166; Cooper v. Lewis, 2 Phil. Ch. 181; Bates v. Skidmore, 170 Ill. 233, 48 N.E. 962.
It was held in the case last cited that a refusal to dismiss a bill without prejudice at the cost of complainant on his motion before proof had been introduced and where it was not made manifest that the defendant was entitled to a decree, was an abuse of discretion and error. It is clear from the authorities that the right of the plaintiff to take a...
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