Kopper v. Dyer

• Decision Date: 30 April 1887
• Citation: 59 Vt. 477,9 A. 4
• Parties: KOPPER v. DYER. DYER v. KOPPER and others.
• Court: Vermont Supreme Court

9 A. 4

59 Vt. 477

KOPPER

v. DYER.¹

DYER

v. KOPPER and others.

Supreme Court of Vermont.

April 30, 1887.

Appeal from chancery, Addison county, December term, 1886; Taft, Ch.

Bill in chancery seeking relief from a decree of foreclosure, which had become absolute, on the ground of accident. Heard on pleadings and master's report. Decree that the orator is entitled to relief according to the prayer of his bill, and that the cross-bill of defendant, Dyer, be dismissed, with costs, from which defendant appealed.

In August, 1880, defendant, John M. Dyer, sold and conveyed to Frederick Kopper the premises in controversy, known as the "Lake Dunmore Hotel Property," together with a large amount of personal property used in connection therewith, for $13,500. Of said purchase money, $10,500 was secured by mortgages of said real estate and personal property, both executed by Kopper to Dyer, August 23, 1880, conditioned that Kopper pay Mary C. Goddard, according to their tenor, certain notes, amounting to $10,500, which Dyer had executed, and which were secured by mortgage on his other real estate; that Kopper pay all unassessed taxes on the Lake Dunmore property on the grand list of 1880; and that he keep the premises insured in the sum of $5,000 for Dyer's benefit. The premises have been continually occupied by Kopper. with the exception stated below, and he is now in possession. The taxes were paid by Kopper to and including 1884. The condition respecting insurance has not been complied with. In 1884, Dyer paid insurance premiums to the amount of $75. For default in payment, Mary C. Goddard foreclosed her mortgage against Dyer, and obtained a decree of foreclosure at the September term, 1882, of the Franklin county court of chancery. January 19, 1883, Dyer, fearing that Kopper might not satisfy the Goddard decree, and for the purpose of being sure that his own property would not be sacrificed, procured the National Life Insurance Company to hold in readiness for him the amount required to pay that decree; and on May 23, 1883, obtained the same from the company, and paid it in satisfaction of that decree. Dyer was also compelled to pay the company the further sum of $193.85, in consideration of its having held said amount in readiness from January to May. Dyer also paid $32.86 costs of the Goddard foreclosure. Dyer made several attempts to foreclose his mortgage against Kopper, and finally it was decreed "that, unless the said Frederick Kopper pay to the clerk of this court, for the benefit of the orator, the sum of $500 on or before January 1, 1885, and the sum of $8,052.09 on or before the first day of June, 1885, he, (the said Frederick Kopper,) and all persons claiming under him, shall be foreclosed and forever barred from all equity of redemption in said premises." Kopper did not pay the $500 as required by the decree, but sent his personal check under circumstances stated in the opinion. January 2, 1885, Dyer obtained of the clerk of the court a certified copy of the decree for record, and a writ of possession thereunder, and immediately took possession of the property, and has paid taxes thereon since. Kopper at once brought the original bill in this cause, praying for such relief as shall give the orator the benefit of the payment already made, as much as he would have had if the currency had been paid into court, as ordered by the decree; that the decree be opened, and further order made on terms, meet to the court, to relieve the orator from the loss that must result to him should no relief be granted; and for an injunction restraining the defendant from any further proceedings under the writ of possession, and from exercising any use or control of the premises. The bill and injunction were served, and Dyer withdrew from the premises. June 1, 1885, Kopper caused the sum of $8,600 to be tendered Dyer in payment of the installment of said decree falling due on that day. Dyer refused to receive it, claiming that Kopper did not owe him, and that the property was his. Kopper afterwards filed his supplemental bill in this cause, setting up the tender, and claiming the benefit thereof, with said payment of $500 to the clerk as a compliance with the terms of the foreclosure decree. Dyer filed his answer to said bill, September 22, 1885, and an amendment thereto, February 20, 1886. May 29, 1885, Kopper conveyed the premises, together with the personal property thereon, which had been mortgaged to Dyer, to Wyman H. Merritt and Frank E. Briggs by warranty deed, which deed was given Merritt and Briggs as security to them for the loan of the money which was tendered to Dyer, June 1, 1885. April 14, 1886, Dyer filed his cross-bill against Kopper, Merritt, and Briggs, for a disclosure of the mortgaged personal property, for surrender of the premises, and an accounting for their use; or, if the decree is to be opened and further time given to redeem, for a correction of the decree, and an accounting and foreclosure. Demurrers to the cross-bill having been overruled, the same was taken as confessed against Merritt and Briggs; and Kopper filed his answer thereto June 19, 1886. The other facts appear in the opinion.

Stewart & Wilds, for Dyer. Ormsbee & Briggs, J. M. Slade, and Noble & Smith, for Kopper.

ROWELL, J. Kopper seeks relief on the ground of accident. That chancery may grant relief on that ground, in cases of this kind, cannot be doubted; and the first question that arises is, has the orator made a case that calls for the interposition of the court in his behalf?

The term "accident," in its legal signification, is difficult to define. Judge Story defines it as embracing, "not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force, but such unforeseen events, misfortunes, losses, act3 or omissions, as are not the result of any negligence or misconduct in the party" affected thereby. 1 Story, Eq. § 78. Mr. Pomeroy justly criticises this definition as including what are not accidents at all, but mistakes, and as omitting the very central element of the equitable conception, and defines it thus: "'Accident' is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right, or becomes subjected to some legal liability, and another person acquires a corresponding legal right, which it would be a violation of good conscience for the latter person, under the circumstances, to retain." 2 Pom. Eq. § 823. And the chief point of the thing is that, because of the unforeseen and unexpected character of the occurrence by which the legal relation of the parties has been unintentionally changed, the party injuriously affected thereby is, in good conscience, entitled to relief that will restore those relations to their original character, and place him in his former position. Id. § 824. But, as a general rule, relief will not be granted unless it can be done with justice to the other party; for, if he cannot be put in as good a situation as he would have been in had the other party performed, the court will not interpose. Rose v. Rose, Amb. 331.

Equity, in many instances, relieves against forfeitures occasioned by the non-payment of money at a day certain; and this, although there is no accident, but negligence instead, on the ground that the condition and the forfeiture are regarded as merely security for the payment of the money. This is the ground on which tenants are relieved from forfeitures for the non-payment of rent as stipulated, and mortgagors are allowed to redeem after the law-day has passed. And although the agreement is not wholly pecuniary, nor measured by pecuniary compensation, still, if the party bound by it has been prevented by accident, without his fault, from an exact fulfillment, so that a forfeiture is thereby incurred, equity will interpose, and relieve him from the forfeiture, upon his making compensation, if necessary, or doing anything else in his power to satisfy the equitable rights of the other party. 2 Pom. Eq. § 833.

In Cage v. Russel, 2 Vent. 352, it is laid down as a standing rule of equity that a forfeiture shall not bind when the thing can be done afterwards, or any compensation can be made for it. Forfeitures are odious, and courts struggle against them, and relief is granted for the non-performance of diverse collateral acts whereby they are incurred; as for not laying out a specific sum in repairs in a given time, (Sanders v. Pope, 12 Ves. 282,) for cutting down timber when covenanted against, (Worthcote v. Duke, Amb. 511,) for not renewing a lease in time, (Rawstorne v. Bentley, 4 Brown Ch. *415,) and the like. Relief is also granted against forfeitures incurred by unintentional breaches of the condition of mortgages for support, on terms that the party in fault fully compensate and indemnify the other party for all he has lost by reason of the breach. Henry v. Tupper, 29 Vt. 358.

In Adams v. Haskell, 10 Wis. 123, the defendants were prevented by accident from reaching the place of a foreclosure sale until after it was completed, and the court for that reason ordered a resale, but on terms.

In Pierson v. Clayes, 15 Vt. 93, the orator, by reason of pending negotiations of settlement, without negligence on his part, let the time of redemption expire; and he was relieved by opening the decree, and giving further time to redeem.

The case of Bostwick v. Stiles, 35 Conn. 195, is confessedly much in point. That was a bill to open a decree of foreclosure, and obtain further time. The mortgage debt was about $4,000, and the value of the premises twice that sum. The time limited for payment was August 5th. The petitioner intended to redeem, but, not having sufficient means of his own, he applied to his uncle—a man of property—to help him, and he agreed to, and to furnish the money...