Inez Norton v. Perley W. Green

• Decision Date: 05 October 1920
• Citation: 111 A. 458,94 Vt. 295
• Parties: INEZ NORTON v. PERLEY W. GREEN
• Court: Vermont Supreme Court

111 A. 458

94 Vt. 295

INEZ NORTON v. PERLEY W. GREEN

Supreme Court of Vermont

October 5, 1920

February Term, 1920.

ACTION OF TORT for entering plaintiff's close and cutting and removing certain trees. On motion of the defendant the case was transferred to the court of chancery. Heard by the Chancellor at the May Term, 1918, Windsor County, Butler Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.

Decree affirmed, and cause remanded.

Charles Batchelder for the defendant.

John J. Wilson and William Batchelder for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

This action was commenced in the law court and was transferred by that court to chancery. The record does not show why a transfer was asked, or the reason for granting it. All that appears is the docket entry, "Ordered transferred to Chancery," and a statement in the finding of the chancellor that the transfer was made at the request and on the motion of the defendant. No objection appears to have been made to the procedure adopted, so we take no notice of it, beyond the suggestion that it is too lax to be followed generally.

The only question here is whether the facts found by the chancellor are sufficient to support the decree. In substance they are these: The plaintiff is the widow of Eden J. Norton who died intestate, March 14, 1915. At that time he owned a farm, which was his homestead, and which was decreed to the plaintiff by the probate court May 12, 1916. The defendant was a general merchant, and the plaintiff and her husband became indebted to him in the sum of one hundred and two dollars. He refused to extend further credit, and on January 2, 1915, the parties made an oral agreement by the terms of which the plaintiff, who was managing the farm during her husband's illness, was to cut and skid for the defendant enough hardwood timber then standing on the farm, at five dollars a thousand, to pay his claim, and, failing to do that, the defendant had the right to cut enough of the best timber on the farm to pay any balance due him, at three dollars a thousand on the stump. At the time of Eden's death, there was due the defendant sixty-two dollars, for which a claim was presented to, and allowed by, the commissioners on Eden's estate. Soon after the death of Eden, one Blackmer was appointed administrator of his estate. The defendant made an arrangement with Blackmer under which the defendant was to cut 20,000 feet of maple lumber on the farm, according to the terms of his contract with Eden and the plaintiff, to satisfy his claim; and Blackmer obtained the consent of the Ottauquechee Savings Bank, which held an overdue mortgage on the farm, to this arrangement provided that he would select and mark the trees to be cut, and that the defendant would cut only trees so marked. Blackmer did not do this work himself, but procured it to be done by one Walker, who, assisted by the defendant, selected and marked such trees, and marked more than were necessary to satisfy the defendant's claim. The plaintiff denied that the administrator had any right to dispose of such standing timber without a license from the probate court, and "protested and...