the Burlington Building & Loan Association And F. J. Haigis v. Eugene P. Ayres
| Decision Date | 02 February 1937 |
| Parties | THE BURLINGTON BUILDING & LOAN ASSOCIATION AND F. J. HAIGIS v. EUGENE P. AYRES ET AL |
| Court | Vermont Supreme Court |
January Term, 1937.
Mortgagors and Assignee Not Entitled to Rent of Premises under Terms of Mortgage and Foreclosure Decree---Decree Sufficient to Enable Mortgagee to Collect Rents---Decree Depriving Mortgagor of Right to Redeem Void---Decree Providing for Collection of Rents by Mortgagee Not Void---That Tenant Not Party to Foreclosure No Aid to Mortgagors---Matter Treated as Waived---Supreme Court Governed by Record.
1. In suit in equity by mortgagee and tenant of mortgaged premises to enjoin prosecution of ejectment suit by mortgagors and their assignee against tenant and commission of other acts interfering with collection of rent by mortgagee, where mortgage authorized mortgagee in event of foreclosure to collect rents, and decree of foreclosure after setting forth such provision ordered foreclosure unless amount due, costs etc., less rents paid to mortgagee, was paid by specified date, and tenant had paid all rent when due to mortgagee mortgagors and assignee held to have no right under mortgage and decree of foreclosure to recover rent of premises from tenant.
2. Decree of foreclosure setting forth prayer of petition for authority to collect rent from mortgaged premises and apply it on indebtedness as provided in mortgage, setting forth finding of chancellor that rents should be paid to mortgagee after date of decree, and ordering that unless amount due under mortgage, costs, etc., less rents, less expense of collecting same, was paid before specified date mortgagors should be foreclosed, held sufficient to enable mortgagee to collect rent and to furnish all parties interested full protection by reason of its so doing.
3. A decree in a foreclosure suit which deprives defendants of the inalienable right to redeem is void.
4. Where decree in foreclosure suit gave defendants a year to redeem and they were notified some days before it was entered what its substance would be, it was not void as depriving them of the inalienable right to redeem because it provided in accordance with terms of the mortgage for the collection of rents by the mortgagee during the redemption period and application thereof on the mortgage debt.
5. Where tenant of mortgaged premises was willing to pay rent to mortgagee during redemption period in accordance with provisions of foreclosure decree, the fact that he was not made a party to foreclosure proceedings held not to avail mortgagors and their assignee claiming such rent.
6. In suit in equity, question raised in defendants' reply brief but not raised by pleadings or referred to in main brief was treated as waived.
7. Supreme Court must be governed by the record and could not consider matters wholly outside it, to which attention was called in reply brief.
APPEAL IN CHANCERY. Bill of complaint to enjoin prosecution of ejectment suit and other acts concerning collection of rent of mortgaged premises during redemption period following foreclosure. Plea, that foreclosure decree did not establish right of mortgagee to rent. Heard on pleadings at the March Term, 1936, Chittenden County, Shields, Chancellor. Plea overruled and bill taken as confessed. Decree for the plaintiffs. The defendants appealed. The opinion states the case.
Decree affirmed and cause remanded.
W R. McFeeters for the defendants.
M. G. Leary and B. J. Leddy for the plaintiffs.
Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ., and STURTEVANT, Supr. J.
The plaintiffs seek to enjoin the prosecution of an ejectment suit brought by defendants against plaintiff Haigis, and the commission of other wrongful acts of defendants concerning the collection of rent by the Building & Loan Association from Haigis. Defendants filed a plea which was overruled and the bill taken as confessed and a decree was entered for plaintiffs from which defendants appealed. The material allegations of the petition are these: On December 3, 1934, the Ayers gave the Loan Association a mortgage on certain real estate to secure the payment of a promissory note, which mortgage provided among other things: "in case foreclosure proceedings are instituted under this mortgage said Building & Loan Association is hereby fully empowered and authorized to collect and receive any and all rents from any tenant or persons occupying said premises, and in case said premises are vacant, to rent or lease said premises at such rental as it deems reasonable, and apply all rents collected as payments on the obligation secured by this mortgage," etc.
The Ayers failed to make payment on the note as required by the terms thereof, and breached other conditions of the mortgage and on September 30, 1935, the Loan Association commenced foreclosure proceedings against them. The petition was duly served and returned, and defendant McFeeters appeared as solicitor for defendants. The petition set forth the provision of the mortgage respecting the collection and application of rent, and prayed, among other things, for authority to collect and apply the same in accordance with such provision.
Prior to November 20, 1935, F. G. Webster, then solicitor for the Loan Association, submitted to defendant McFeeters, as solicitor for the Ayers, a motion for a decree. McFeeters wrote Webster on the latter date:
December 3, following, Webster wrote McFeeters that he had...
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