Perley P. Pitkin's Adm'rs v. City of Montpelier
| Decision Date | 19 February 1912 |
| Citation | 82 A. 671,85 Vt. 467 |
| Parties | PERLEY P. PITKIN'S ADM'RS v. CITY OF MONTPELIER |
| Court | Vermont Supreme Court |
January Term, 1912.
ASSUMPSIT for the price of land sold and conveyed. Plea, the general issue. Trial by court at the March Term, 1911 Washington County, Miles, J., presiding. Judgment for defendant to recover its costs. The record does not show that the question of the Statute of Frauds was raised below, nor that the plaintiff objected to the admission of any evidence except to the admission of a cash book and the records of warnings and proceedings of certain meetings.
Judgment affirmed.
W. N. Theriault and W. B. C. Stickney for the plaintiffs.
Present: ROWELL, C. J., MUNSON, HASELTON, AND POWERS, JJ.
This is an action of assumpsit brought by the administrators of the estate of the late Perley P. Pitkin to recover of the City of Montpelier the purchase price of certain land on the ground that the land had been sold and conveyed by them to the city. The case was tried by the court which made a written finding of facts. Upon the facts found the court rendered judgment for the defendant to recover its costs. The plaintiffs bring the case here by a bill of exceptions.
By No 245 of the Acts of 1908, the City of Montpelier was authorized to issue "notes or bonds not exceeding one hundred thousand dollars in amount, for the purpose of building school houses, and for the purchase of land for sites therefor and for grounds and playgrounds in connection therewith, and for the payment of damages for land taken for that purpose."
March 2, 1909, at its annual meeting, the city by a majority vote authorized the issue of bonds to an amount not exceeding a hundred thousand dollars for the purposes named in the act of authorization, and at that meeting a committee was chosen consisting of the Mayor, as chairman, and six of the school commissioners, to make investigations and to report to a special city meeting to be held on the first Tuesday in May following. A city meeting, duly warned, was held on that day and was duly adjourned to May 18, 1909. At the adjourned meeting the school building committee, as it was called, made a report of their investigations and deliberations. The material part of their report was a recommendation, as the site for a high school building, of the Bixby lot on Loomis street and such portion of the Pitkin and Lane Manufacturing Company's properties adjoining as might be found necessary for the site. This site the committee reported has a frontage on the Bixby lot of 195 feet, and on the Pitkin lot of 178 feet, has a depth of 215 feet, and affords ample space for the building. The committee reported upon the advantages of this site saying, among other things, that it has close at hand sufficient available land for adequate playgrounds should the city desire to procure them, and expressing the belief that ample playgrounds for scholars should be furnished by the city. They expressed their opinion that the site recommended, with ample playgrounds, ought to be secured and the school building erected at a cost not to exceed a hundred thousand dollars; but that, owing to the uncertainty of condemnation proceedings and in view of the necessary grading, the total cost might exceed a hundred thousand dollars. The city meeting accepted and adopted the report and adopted the location of building and playgrounds recommended, and referred the erection of the school building to the school board and the Mayor, the latter to act as chairman, and referred to the city council the matter of any condemnation proceedings that might be found necessary.
October 13, 1909, the city council instructed the clerk to notify the plaintiffs, and also Clementine L. Bixby and the Lane Manufacturing Company, that the council proposed to take lands belonging to them on the southeasterly side of Loomis street as a site for a school house and for lands for playgrounds in connection therewith, and that the council would meet October 26, 1909, at an hour and place named, to hear those notified upon the question of such taking and upon the question of damages. It does not appear that any meeting was held in accordance with this notice, but on October 27 the council voted, and here we quote from the record, "to pay for land for a new building and grounds as follows: Lane Manufacturing Company, $ 9,000.00; L. H. Bixby, $ 9,000., he to reserve the buildings; Pitkin Estate, $ 5,750."
Previous to the meeting at which this vote was taken the city council, or the members thereof, with the plaintiff Wood had gone over the land in question, and negotiations had been had between the council and the attorney for the plaintiffs as to price, and the vote to pay $ 5,750.00 to the Pitkin estate is found by the court to have been to pay that sum for the land described in the deed in question. The findings of fact state that the vote was taken after remarks addressed to the council by the attorney of the plaintiffs as to the price that would be satisfactory to them. It is not found, and we are not warranted in inferring, that the vote of the council was the acceptance of an offer made by the plaintiffs through their attorney or otherwise. It appears rather that the vote was an offer for the land made by the council, and offer which, very likely, in consequence of the remarks of the attorney, the council had reason to suppose that the plaintiffs would accept. At the time of this vote the plaintiff Wood was away from Montpelier and he did not return for a week or ten days thereafter. A while after his return the plaintiffs applied to the probate court for a license to sell the real estate in question, and that court granted such license December 3, 1909. Some six weeks later, or, to be exact, January 11, 1910, the plaintiffs executed the deed in question.
So far as appears the next that was done in the matter was January 21, 1910. On that day the plaintiff Wood delivered the deed to the Mayor of the city, for the city, with the intention on the part of the plaintiffs of transferring the title to the described land unconditionally, and the deed was received by the mayor with knowledge of such intention. The mayor received the deed with the intention on his part of submitting it to the secretary of the school board to whom he shortly did deliver it. Soon thereafter the secretary submitted it for examination to Mr. Howland, a member of the school board, who never carefully examined it before it was returned to the plaintiff Wood. At the time the mayor received the deed, but after he had taken it into his hands, he said to the plaintiff Wood, in substance, that the city would not be able to pay for the land until its bonds were floated and the plaintiff Wood then understood that the land would be paid for when the bonds were issued.
In the interval following the vote of March 2, 1909, looking to the issue of school bonds the matter of bonding had been at different times under consideration. September 22, 1909, the city council had referred the matter of floating $ 30,000 of schoolhouse bonds to the treasurer for the ascertainment of the best method of so doing, October 27, 1909, at the meeting at which it was voted to pay the Pitkin estate the sum already named, the city council referred the matter of bonding to the finance committee which was to report thereon. December 8, the finance committee was authorized to advertise for bids on high school bonds of the face value of $ 30,000, the bids to be opened December 22, 1909, It seems that the authorization was acted upon, for December 22, 1909, bids were opened, the best bid being from the National Life Insurance Company, and an issue of bonds of the face value of $ 30,000, was awarded to that company. January 4, 1910, the matter of printing bonds was referred to the finance committee. January 12, that committee reported that the insurance company would have its attorney present a sample bond and look into the legality of the issue. These proceedings of December 8, December 22, January 4, and January 12, were taken in the interval between the time when the plaintiffs' got their license to sell the real estate and the time when they presented the deed in question to the mayor. The National Life Insurance Company revoked its bid and no bonds were, in fact, issued. Just when the bid of the insurance company was revoked does not appear.
March 1, 1910, at its regular annual meeting, the question of the issue of bonds of the amount of a hundred thousand dollars for the purposes contemplated by the vote of the March previous was under consideration. May 19, 1910, at a special meeting the city voted 546 to 82, to rescind the vote of the year previous, the vote by which the Loomis street site had been chosen for a schoolhouse and playgrounds. Six days after this rescinding vote the mayor received the deed in question from a member of the school board, and the next day after receiving it the mayor returned it to the plaintiff Wood who refused to receive it. The subsequent history of the deed, not claimed by either party to be material, is in brief this: The mayor left it with the plaintiff Wood who sent it to the city clerk's office, where it has since been, but not as a file for record. We have recited the principal facts attending the proceedings relative to the deed or to the land described therein.
It is claimed by the plaintiffs that in consequence of what appears, the title to the land vested in the city, and that they are entitled to recover the purchase price on the ground that the land was sold and conveyed to the city.
Title to real estate passes upon the delivery of a deed thereof. Harrington v. Gage, 6 Vt. 532; Elmore v. Marks, 39 Vt. 538; In re Lane's Estate, 79...
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