Kendall v. Tracy
| Decision Date | 08 August 1892 |
| Citation | 24 A. 1118,64 Vt. 522 |
| Parties | WILLIAM M. KENDALL v. TRACY, HATHAWAY & HATHAWAY |
| Court | Vermont Supreme Court |
FEBRUARY TERM, 1892
Petition to foreclose a mortgage. Heard on bill, answer, and a master's report, at the December term, 1889. Ross chancellor, decreed foreclosure as to all the defendants. The defendants Hathaway appeal. The opinion states the case.
Decree affirmed, and cause remanded.
J.G Harvey and D.C. Denison, for the petitioner.
This is a petition to foreclose a mortgage. It was taken as confessed as to the defendant Tracy. Defendants Hathaway answered, claiming the benefit of the statute of limitations, and the case was referred to a master, who reported that the petitioner, Jan. 2, 1866, sold and conveyed a farm in Hartland to defendant Tracy and took back from him a mortgage on the farm to secure the payment of Tracy's promissory note of that date for $ 2,600, payable to the petitioner on demand with interest annually; that Dec. 23 1871, Tracy, by a warranty deed conveyed a small piece of the mortgaged land, worth $ 100, for a mill-site, and $ 15 for farming purposes, to the Hathaways, for the nominal consideration of $ 400, but in fact, for the consideration that the grantees would build a dam and saw mill upon the land conveyed to them. The deed of this land was drawn for the petitioner and Tracy to sign, but it was never presented to the petitioner for that purpose, nor was he requested to execute it. It was executed by Tracy and delivered to the Hathaways, who caused it to be recorded, and in the year 1872 built a dam upon the stream, also a grist mill, saw mill and cider mill, at the expense or about $ 5,000. When the Hathaways took their deed they knew that the land conveyed to them was covered by the mortgage. to the petitioner, but nothing was ever said between them and the petitioner or between the latter and Tracy in regard to the mortgage. The petitioner knew that the Hathaways were intending to build the mills and was frequently on the site when they were being built, and has been at the mills several times a year since they were completed. Some years before the Hathaways took their deed the petitioner offered to give them this site if they would erect mills upon it, "but nothing was done towards it at that time." The Hathaways have occupied and operated the mills since they were built, claiming title thereto, and have paid nothing on the mortgage debt, nor recognized it, nor recognized that the petitioner had any interest in the land. Tracy from time to time made payments on the note so that it never became barred by the statute of limitations as to him. The master further finds that the Hathaways supposed that they had good title to the property; also that the farm is increased in value by the mills being built upon it more than the value of the mill site, that the farm is now worth $ 2,500, the mills and site $ 2,000, and that there is due the petitioner on the mortgage debt $ 4,899.99.
1. The doctrine of estoppel has no application here. The petitioner did not say or do anything to mislead the defendants, nor was he bound to speak when he remained silent. He in fact had no knowledge in regard to the mortgage, aside from the amount of it, which they did not possess. It does not appear that the defendants acted upon anything that the petitioner said or did in erecting their buildings upon the mortgaged premises. The defendants supposed that their deed gave them a good title, but it is not found that the petitioner knew that they so supposed. The petitioner might reasonably have believed that the defendants relied upon their grantor relieving the land from the mortgage, and they must be presumed to have known the law as to their rights and liabilities.
2. The defendants cannot avail themselves of the statute of limitations. They could acquire by their deed no better title than Tracy had, which title he held subject to the petitioner's mortgage, and that mortgage was kept from the operation of the statute by...
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