Paine v. McDowell

• Decision Date: 03 October 1898
• Parties: PAINE v. McDOWELL et al.
• Court: Vermont Supreme Court

41 A. 1042

71 vt. 28

PAINE

v. McDOWELL et al.

Supreme Court of Vermont. Orleans.

Oct. 3, 1898.

Appeal in chancery, Orleans county; Ross, Chancellor.

Petition in chancery by Hope S. Paine, administratrix, against Leonard McDowell and Melvln E. Tucker. Heard on pleadings, master's report, and exceptions thereto. From a decree of foreclosure, but allowing defendant Tucker, under his cross bill, to remove certain of the property, not including the buildings, boiler, engines, and main shaftings, Tucker appeals. Reversed.

Bates, May & Siinonds, for appellant.

John Young, for appellee.

ROWELL, J. This is a petition to foreclose the equity of redemption arising under a contract of purchase of a farm consisting of a lot of land in Eden and a lot in Lowell. The master finds that on August 13, 1878, the intestate owned the lot in Lowell by virtue of a warranty deed thereof from Willard Fuller to Samuel McDowell, dated January 10, 1878, duly executed and recorded, and of a quitclaim deed thereof from the said Samuel to him, dated the 13th of said August, duly executed and recorded. It appears that the defendant Leonard McDowell lived on said farm before and at those times, and has lived there ever since. On December 2, 1880, the intestate and the defendant McDowell entered into a written agreement which recited that the intestate then owned said farm, and had bargained it to said McDowell, and that McDowell had given him his certain notes and obligations therefor, and provided that if said notes and obligations were paid according to their tenor, and all other legal demands and accounts that the intestate might hold against said McDowell, and the balance due to said Fuller on a mortgage of the Lowell lot, the intestate would quitclaim the farm to McDowell. This contract gave McDowell an equity of redemption in the premises, and made the transaction, in legal effect, practically the same as a deed and mortgage back; and as McDowell took possession under the contract, and has never surrendered it, neither he nor those claiming under him can dispute the intestate's title; and therefore, as the defendant Tucker claims under McDowell, the objection that the quitclaim deed from Samuel McDowell to the intestate was not of itself (nothing more appearing) evidence of title can avail nothing; nor can the further objection that said deed passed no title as to the defendant McDowell because he was then in adverse possession. And it may be remarked that it does not appear that his possession was ever adverse to Samuel McDowell.

The oratrix called the defendant McDowell as a witness, and proved by him, without objection, the making of said contract, and the execution of the notes thereby secured. McDowell was afterwards allowed to testify on behalf of the defendants, among other things, to the making of certain unindorsed payments, which the master found on his testimony alone, and which, on objection that he was incompetent, as the other party to the contract was dead, the court disallowed. The oratrix now concedes that this was error, for that by using him as a witness herself she admitted his competency, or, rather, waived her right to object to him for incompetency, when subsequently called by the other side, according to Linsley v. Lovely, 26 Vt. 123, 133, cited approvingly in State v. Slack, 69 Vt, at page 492, 38 Atl. 311. After the death of the intestate and the appointment of the oratrix, and before the erection of the buildings in question was commenced, which was in the fall of 1893, the defendant Tucker, owning much timber land near by, acting in good faith, supposing that the defendant McDowell owned the lot in Lowell subject to mortgage, and had a right to lease it, agreed with him for the use of so much thereof as was or might be necessary for the erection of a mill thereon, and for yard room and roads to be used in connection therewith in his lumber business, at and for a yearly rental of five dollars, as long as the mill was used. That fall and winter, Tucker built a building on the corner of said lot that adjoined two lots of his, and put into it a saw mill and a dressing mill, and other machinery; and in 1895 he added to the building a box factory and a shed, and put in more machinery. The value of the whole lot does not exceed $300. The buildings are worth $1,000; and the machinery therein, $5,000. Tucker did not purpose to enhance the value of the lot by his outlay, but only to provide means for cutting out the timber on his Lowell lot which he thought would take about six years, and intended, when that was done, to remove the building and machinery to his Eden lot; and the agreement between him and McDowell was that he might do that. The master finds that the oratrix knew of the letting of the land to Tucker for the purpose for which it was used about the time the buildings were being built but made no objection thereto. Tucker knew that the lot was under mortgage, and was told that the estate held It, and, besides, the records were constructive notice to him that the estate had a quitclaim deed of the land; so he was laboring under no mistake as to the legal quality of McDowell's title.

The oratrix claims that the buildings and the machinery therein are so attached to the land as to become a part thereof, as between her and Tucker, and that, therefore, he has no right to remove them; and she forbade him when he sought to do so before filing his cross bill. Tucker claims, on the other hand, that, as under his contract with McDowell, who was in possession, he had the...