Robinson v. Leach
| Decision Date | 04 February 1895 |
| Citation | 67 Vt. 128,31 A. 32 |
| Court | Vermont Supreme Court |
| Parties | ROBINSON v. LEACH. |
Exceptions from Rutland county court; Start, Judge.
Action by Lucy Robinson against M. V. B. Leach, as assignee in insolvency, to establish a claim against a homestead. To an order allowing the claim, defendant excepts. Affirmed.
J. C. Baker, for plaintiff.
Fayette Potter, for defendant.
The question is whether a homestead is exempt from a note given by the homesteader after its acquisition, in renewal of his notes given before its acquisition, the parties to the notes being the same. The statute subjects the homestead to attachment and levy of execution upon "causes of action existing at the time" it is acquired. It is contended that the cause of action meant is the claim that the plaintiff makes and declares upon as the ground of his suit, and which is to be litigated on trial. But this construction is too strict. The Words "causes of action" are evidently used in a sense broad enough to embrace the debt, as distinguished from the evidence of it. The statute is the same for the purposes of this case as though it read "debts existing," etc. Hence, if the original debt can be said to exist, the case is with the plaintiff.
Courts will, if they can, when justice requires it, look behind the evidence of the debt, and consider the debt itself, and decide according to that. This is always done when mortgage notes are renewed. As long as the original debt can be traced, the security remains, no matter how many renewals there have been. So in Conway v. Seamons, 55 Vt. 8, we looked behind a judgment rendered, after the defendant's discharge in insolvency, but founded on a note unaffected by the discharge, and held the judgment not discharged because the note was not The ground of the holding was that although the note, as evidence of the indebtedness, was merged in the judgment, yet the judgment was not to all intents a new debt, but the old debt in a new form, for the purpose of protecting the right connected therewith before the judgment. The same view was held and applied in Pinney v. Kimpton, 46 Vt. 80. There the plaintiff held a note as collateral for signing with another. Having had to pay, he took the note of his principal for the amount, and afterwards brought suit on the collateral. It was held that, by taking his principal's note, he did not discharge his claim on the note he held as collateral. The court said that the debt still existed, though evidenced by the principal's note; that, in an action against the principal for the collection of...
To continue reading
Request your trial
-
Brattleboro Sav. & Loan Ass'n v. Hardie
...suit on the [preexisting] debt.” Weale v. Lund, 2006 VT 66, ¶ 11, 180 Vt. 551, 904 A.2d 1191 (mem.) (citing Robinson v. Leach, 67 Vt. 128, 129, 31 A. 32, 33 (1895), which stated that statute was “the same ... as though it read, ‘debts existing’ ”). We reaffirmed the view that § 107 applies ......
-
In re Hawkins, Bankruptcy No. 92-10121
...the obligation of the renewal note. Thayer relied on the early Vermont cases of Pinney v. Kimpton, 46 Vt. 80 (1873), and Robinson v. Leach, 67 Vt. 128, 31 A. 32 (1895), which held that as long as the original debt is not paid and can be traced, the security remains. See also Island Pond Nat......
-
Weale v. Lund, 05-365.
...the homestead, that there should then be a present right of action." Id. at 388 (emphasis added). Then again in Robinson v. Leach, 67 Vt. 128, 129, 31 A. 32, 33 (1895), we squarely rejected the contention that "causes of action" in the statute were limited to a creditor's suit on the It is ......
-
In re McQueen
...by a new note is not cancellation of the security held by the payee of the original note. Pinney v. Kimpton, 46 Vt. 80; Robinson v. Leach, et al., 67 Vt. 128, 31 A. 32. However, it contends that these cases are distinguishable since in the instant case the Bradford Bank marked the note and ......