van Dyke v. Cole

• Decision Date: 12 August 1908
• Citation: 70 A. 593,81 Vt. 379
• Parties: VAN DYKE et al. v. COLE.
• Court: Vermont Supreme Court

70 A. 593

81 Vt. 379

VAN DYKE et al.

v. COLE.^†

Supreme Court of Vermont. Essex.

Aug. 12, 1908.

Appeal in Chancery, Essex County; Wm. H. Taylor, Chancellor.

Suit by Thomas H. Van Dyke and another against Damon L. Cole for injunction. Defendant had a decree under his cross-bill for specific performance, and orators appeal. Affirmed and remanded, with mandate.

Some time in the summer of 1885, the defendant bought the land in controversy, known here as the "Cole Land," of Florieu Harriman, the owner, for the agreed price of $315, of which the defendant then paid $10 in cash and gave his note for the balance, $305, dated June 10, 1885, and payable to the vendor, or order, in installments; $30 one year from date, $25 two years from date, and five annual installments of $50 each thereafter, all with interest annually. At the same time they mutually executed under seal a contract, or bond, whereby the party of the first part (vendor) "for the consideration hereinafter mentioned, hereby agrees to sell to the said party of the second part (the defendant), who hereby agrees to purchase," the lands here in question. "The said party of the second part hereby agrees to pay to said party of the first part, for the said premises, the sum of:" Then follows the consideration, and provisions for the payment of the installments in the note which is described. The contract was always in the defendant's possession until in January, 1900, when it was burned with his dwelling, and no copy or record of it was found. The master finds that it contained provisions as follows: "And the said party of the second part also agrees to pay all taxes and assessments which have been imposed on said premises during this current year, and all of which shall henceforth be imposed on said premises; and not to commit or suffer any waste or damage on said land, by cutting down, carrying off, or destroying any timber or trees, growing or being thereon, other than shall be necessary in clearing said land for cultivation, or for making necessary buildings and fences on the same, or for necessary fuel. And the said party of the first part does hereby agree that on payment of the purchase money and interest, and the performance of the agreements and stipulations as aforesaid, by and on the part of the said party of the second part, he will, by a good and sufficient warrantee deed, convey or cause to be conveyed to the party of the second part, his heirs or assigns, the aforesaid hereditaments and premises. And it is hereby agreed that if the said party of the second part shall fail in the performance of any of the aforesaid agreements or stipulations on his part to be performed, then it shall be lawful for the said party of the first part, at any time after such default, if he sees fit, to declare this contract forfeited and vacated, and to re-enter upon and take possession of said premises, and all buildings and improvements thereon, and to sell and dispose of the same to any person or persons whomsoever; and the said party of the first part shall and may retain all sums of money paid by the said party of the second part, or any subsequent purchaser, as and for liquidated damages for such failure."

On the making of this contract the defendant immediately went into the actual possession of the land under it, and from that time hitherto has been in possession thereof and occupied it as his home. The note was not paid according to its terms, but payments have been made thereon as follows: Before October 5, 1889, the defendant performed labor for the vendor and let him have a harness, total in value $38.50, which amount was agreed upon on that date and indorsed on the note by the consent of both parties; a payment of $18 by way of work in haying by defendant's son, in 1890; in 1891, a payment of $18.50, by similar work of defendant's son; in March, 1895, a payment in money, $50, by the Averill Lumber Company at defendant's direction; and in the fall of 1895, a payment of $30 by way of work by the defendant. On September 5, 1890, the vendor gave a warranty deed to the orator Warren E. Drew of lots 100 and 101, of which lots the Cole land was a part, together with other lots of land, "except * * * 100 acres sold to Cole." The 100 acres there excepted is the Cole land, and the Cole referred to is the defendant. On the same day Drew quitclaimed back to the vendor lots 100 and 101, with other land. April 12, 1898, the vendor quitclaimed to Drew an undivided half interest in "100 acres on which said Harriman had given Damon Cole a land contract." February 15, 1900, the vendor conveyed eight lots, including lots 100 and 101, to Drew, "excepting * * * and subject to any right Cole * * * may have by land bond." On the 5th day of March, 1900, Drew and wife quitclaimed to the other orator, Thomas H. Van Dyke, an undivided one-half of the same eight lots, with the same exception and subject to the same right of the defendant "by land contract." Again on October 24, 1905, just before the bringing of the suit in ejectment hereinafter mentioned, the vendor executed a quitclaim deed to Drew of the same eight lots, with the same exception, and subject to the same rights in the defendant. This deed states that it is given in confirmation of the former deed given by the vendor to Drew on the 15th day of February, 1900, "and to cure a defect in title existing at that time, to wit, an undischarged mortgage from the vendor to Gilbert Harriman dated November 28, 1881; * * * said mortgage having been subsequently discharged on the 10th day of March, 1900." On the same 24th day of October, 1905, Drew quitclaimed to Van Dyke one undivided half of the same eight lots, with the same exception and subject to the same right in the defendant.

At the time of the defendant's purchase the soft wood timber had nearly all been out off the land; the stumpage then being worth from 75 cents to $1 a thousand feet, while hard wood stumpage was worth but very little. No land had then been cleared. The defendant fixed up a vacated lumbermen's shanty thereon to live in, later building a dwelling house and barn. The house was burned in January, 1900, and in 1901 he built a new house. This house and the barn above mentioned are now on the place. The defendant has cleared some 25 acres of land, and cuts on it annually from 16 to 20 tons of hay. The soft wood trees on the place in the time of the defendant's occupancy have grown rapidly in size and value, which fact was well known to all of the parties to this suit. At the present time the greatest value of the place is in its timber; there being some 300,000 to 350,000 feet of soft wood worth from $0 to $8 a thousand feet, stumpage, and 50,000 feet of hard wood, worth from $2 to $3 a thousand feet, stumpage. The present value of the place is from $2,500 to $3,000. Since 1885, and prior to November 1, 1905, the defendant from year to year cut in all from 140,000 to 150.000 feet of soft wood lumber from the place; but there was no evidence that he cut any prior to 1887, except some for the buildings. The master reports that it did not appear when between 1885 and 1905 timber was cut by the defendant, nor did it appear how much was cut during that period for necessary buildings, fuel, and fencing, although it did appear that some of the timber used for building the two houses and the barn was cut on the place. From the fall of 1885 to March 5, 1900, Gilbert Harriman was the agent of the vendor to collect and receive payments on the note against the defendant, who was so informed, and acted accordingly. About 1888 the vendor moved some miles away from the Cole land, leaving Gilbert in charge "to see that no waste was committed," etc.

It is found: That Gilbert, as such agent, knew, or ought to have known, of the cutting of timber from year to year up to 1900, and that the orators from the time they or either of them had any title to that land knew, or ought to have known, of it; that in fact Gilbert did know of it, for as early as 1894 or 1895 he told the vendor that the defendant was trespassing and committing waste. Yet neither Gilbert, the vendor, nor the orators ever made any remonstrance to the defendant against it in any way before the latter brought their suit in ejectment When the orators took their deeds of the land in question, they both knew that the defendant was in the occupancy thereof; that after the house was burned in January, 1900, they knew, or ought to have known, that the defendant was rebuilding in 1901, jet they made no objection and gave defendant no notice of their ownership nor of the claims they now make. It is further found: That neither the vendor nor either of the orators ever demanded payment of the sum due on the land contract; that the vendor never demanded possession of the land for any noncompliance with the conditions of the contract; that neither the vendor nor the orators ever entered upon or attempted to take possession of the land for any alleged failure of the defendant to fulfill the contract up to the bringing of the suit in ejectment; and that the defendant always recognized the validity of the note as a claim on the land, but at the time he took his contract, and ever after when clearing up the land and cultivating it, erecting the various buildings thereon, and when cutting down the timber and selling it, he supposed he had a good title to the fee, and was never notified nor knew that any one claimed otherwise till the bringing of that suit. Other than whatever effect the bringing of that action may have had, no notice was ever given to the defendant by the vendor or by the orators of any rescission of the contract, nor of fixing a certain or reasonable time within which the defendant would be required to perform to save a rescission. The suit in ejectment was brought about November 1, 1905, was duly entered in Essex county court, and is still pending. January 5, 1906, the orators, having learned that...