Vermont Accident Ins. Co. v. Fletcher

• Decision Date: 28 January 1914
• Citation: 89 A. 480,87 Vt. 394
• Parties: VERMONT ACCIDENT INS. CO. v. FLETCHER et al.
• Court: Vermont Supreme Court

89 A. 480

87 Vt. 394

VERMONT ACCIDENT INS. CO.

v. FLETCHER et al.

Supreme Court of Vermont. Rutland.

Jan. 28, 1914.

Appeal in Chancery, Rutland County Court; Zed S. Stanton, Chancellor.

Petition by the Vermont Accident Insurance Company against Judson B. Fletcher and another. From a decree dismissing the bill, orator appeals. Affirmed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

F. S. Platt and T. W. Moloney, both of Rutland, for appellant.

Holden & Healy, of Bennington, for appellees.

HASELTON, J. This is a petition in chancery to foreclose a claimed mortgage. The facts were found by a special master. A decree was rendered pro forma, dismissing the bill with costs for the defendants. The orator appealed.

At the times material to this case O. O. Fletcher, a son of the defendants, Judson E. and Emma J. Fletcher, was president of the orator, the Vermont Accident Insurance Company, and in apparent control of its financial affairs. He owed the company $500 on one demand note and $2,350 on another. His wife, Maud L. Fletcher, owed the company $2,550 on her note, which was indorsed by the defendant Judson E. Fletcher. The claimed mortgage deed was obtained in the following manner: President Fletcher of the company brought to his father a blank form of a mortgage deed, and procured his father, Judson E., to sign it in blank, and caused his father to get his mother, Emma J., to sign it in blank. No one witnessed their signatures, no seals were affixed thereto, and neither of the defendants acknowledged the instrument. The cause of these doings was, as the master finds, that President Fletcher went to his father and represented to him that the insurance commissioners of the state were criticising the officers of the company and its management because of the holding of the unsecured notes above referred to, and were insisting that the notes be paid or secured; but, as the master further finds, President Fletcher did not specify any notes in making these representations, and neither his father nor his mother had any actual knowledge of any other note than the one signed by their daughter-in-law, Maud L., and indorsed by the defendant Judson E. Fletcher. The defendants thereupon signed the blank mortgage form as above stated, and authorized their son to fill out and complete the paper in every way necessary to satisfy the insurance commissioners, and the authority given was not specifically limited to the note indorsed by the defendant Judson E., which was paid before the bringing of this suit. The defendants' son, who, as has been said, was the president of the company, took the blank with the signatures attached and thereafter filled it out or caused it to be filled out, himself signed as one witness, procured another person to sign as a second witness, and procured a form of acknowledgment to be made and attached by a notary. He then sent the mortgage, complete in form, to one William F. Perry, of Keene, N. H., who with a brother owned about half of the stock of the company, and with it his two notes above described, representing that the notes were secured by this mortgage, and that the notes so secured were assets of the company. Perry caused the mortgage to be recorded. It does not appear that the Insurance Commissioners had made the criticisms which they were represented to have made, and there is no finding and there was no evidence that the Insurance commissioners ever saw, knew, or passed upon this so-called security.

The date of two of the notes was incorrectly described in the mortgage, but we do not tarry to consider the effect of such misdescription, for the instrument was no deed. P. S. 2577.

A system of real estate conveyancing, consisting in the signing and circulation of blank forms, is not compatible with the law of this state.

It sufficiently appears that President Fletcher was acting as the agent of the company, and that the blank form was delivered to him as such; and the filling up of the blanks by his procurement so as to make a written instrument could have no effect without a redelivery. The orator's president could not make something out of nothing. Town of Barnet v. Abbott, 53 Vt. 120; Williams v. Cutcher, 5 How. (Miss.) 71, 35 Am. Dec. 422; Burns v. Lynde, 6 Allen (Mass.) 305; Ayres v. Homes, 1 Ohio, 308, 13 Am. Dec. 629; Davenport v. Sleight, 19 N. C. 381, 31 Am. Dec. 420; United States v. Nelson, 2 Brock. 64, Fed. Cas. No. 15,862; 1 Shep. Touchstone, *54.

Although the notary's certificate of acknowledgment was false, we do not discuss that matter, for an unacknowledged deed may have force and effect as between the parties thereto. P. S. 2581; Pierce v. Brown, 24 Vt. 165; Lemington v. Stevens, 48 Vt. 38.

Nor do we discuss the lack of seals, for an instrument to which the law requires what it calls a "seal" to be affixed (P. S. 21) may be treated in equity according to the intention of the parties (Rutland v. Paige, 24 Vt. 181).

Nor do we discuss the false attestation of at least one of the witnesses....