Vermont Marble Co. v. Eastman
| Decision Date | 01 May 1917 |
| Citation | 101 A. 151,91 Vt. 425 |
| Parties | VERMONT MARBLE COMPANY v. GEORGE P. EASTMAN AND PERCIVAL W. CLEMENT |
| Court | Vermont Supreme Court |
Motion for re-argument heard at the October Term, 1916.
APPEAL IN CHANCERY. Heard on bill and answer and facts found by the chancellor at the September Term, 1915, Rutland County, Fish Chancellor. Decree for plaintiff. Defendants appealed. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Decree affirmed, and cause remanded.
F. C. Partridge, Lawrence, Lawrence & Stafford and T. W. Moloney for plaintiff.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.
The primary question in this case is as to the true location of the divisional line between land owned by the plaintiff and land owned by defendant Eastman, the legal and record title to which latter is held by defendant Clement in trust, the same being in the nature of an equitable mortgage and not otherwise.
Both sides discuss, more or less, questions regarding the admission or rejection of evidence; but no such objection was made by either side, by exception to the report, filed in the court of chancery, and consequently no question of that character can be heard. The statute is peremptory that no such question shall be heard in this Court, unless the objection is made by exception to the report, duly filed in that court. P. S. 1268. And this statute is construed to be alike applicable when the cause is heard before a chancellor. Barber v. Bailey, 86 Vt. 219, 84 A. 608, 44 L.R.A. (N.S.) 98; Rowley v. Shepardson, 90 Vt. 25, 96 A. 374; Osha v. Higgins, 90 Vt. 130, 96 A. 700.
Defendants filed 18 exceptions to findings of fact; but the plaintiff urges that these exceptions should not be considered because, as shown by affidavits, neither the company nor any of its solicitors received a copy of the exceptions, nor had any knowledge or notice that they had been filed, prior to the time when a copy of defendants' brief was received in exchange for a copy of plaintiff's brief, late Sunday afternoon, a week and two days before the case was argued in this Court. The affidavits do not show that at the time of filing the exceptions a copy thereof was not left with the clerk of the court for the adverse party, as required by Chancery Rule 47. By Rule 46 it was the duty of the clerk, when these exceptions were filed, forthwith to notify the plaintiff or its solicitors of such filing. According to the affidavits, this was not done. Such negligence on the part of the clerk being shown, we cannot say that it was not due to his neglect also that plaintiff or its solicitors did not receive a copy of the exceptions. In these circumstances, it would be doing the defendants an injustice to deprive them of the benefit of their exceptions on the ground stated, when, so far as appears, the fault was not theirs.
The transcript of testimony was not made a part of the chancellor's report. It was referred to by the defendants in their exceptions and made a part thereof; but this does not bring it before us. Royce v. Carpenter, 80 Vt. 37, 66 A. 888; Child v. Pinney, 81 Vt. 314, 70 A. 566; Barber v. Bailey, cited above.
Exceptions 10, 11, and 13, not being briefed, are waived. Exceptions 1, 4, 5, 7, 8, 9, 12, 14, 15, 16, and 17, involve the examination and consideration of evidence not before the court; hence we cannot say that the evidence did not support the findings. Fraser v. Nerney, 89 Vt. 257, 95 A. 501.
Exception 2 is to the finding that the deed from Walter W. Fant to the plaintiff is a warranty deed, for that its legal character is a question of law, not of fact; and exception 3 is to the finding that the deed from Phoebe J. Bardin to Charles H. Barbour is a quitclaim deed, on the same ground. We give these two exceptions no consideration; for, if it be conceded that in each instance the court was wrong, the defendants were not harmed thereby in the view we take of the case.
Exception 6 is to the language in article 70 of the findings, "unless there was something in the record title to put the orator upon notice at the time it bought of Fant, of a claim by the adjoining owner on the south to a line north of the present pin line,' there was nothing sufficient to give it such notice," for that the matter there stated is a question of law and not of fact, and the determination of what is sufficient to give such notice is a question of law for the court upon all the facts in the case. However this may be, the disposition we make of the case renders the question here raised immaterial.
The question presented by exception 18 is determined below.
Findings to which no exception was taken show that the lands between which is the divisional line in question, were formerly owned by Andrew J. Mead, under whom, as common grantor, through divers conveyances, both the plaintiff and the defendants claim their titles, going back to the same day, September 29, 1866; that there is no dispute as to the location of Mead's north line, it being correctly shown in plaintiff's plan, Exhibit 118, dated September, 1914. The record shows that the stone wall mentioned in the deeds from the common source and made the easterly boundary of the lands thereby conveyed (as far as the wall extends), now owned by the plaintiff and by the defendants, respectively, and between which the location of the line is now in dispute, is still there. This wall may well be treated as a permanent object in its original location on the ground. The deeds and the decrees in the chain of title of each of the parties, were made exhibits in the case, and are before us as a part of the chancellor's report.
On September 29, 1866, Andrew J. Mead gave a bond for a deed of a certain part of his farm, particularly describing it, in favor of Horace G. Clark, Alanda W. Clark, Norman Clark, Gardner L. Gates, and Hiram L. Briggs, giving them and their assigns the right to enter upon the premises for the purpose of opening, developing, and working any and all marble quarries thereon, within the time therein limited. At the same time Mead gave a bond for a deed of another certain part of his farm, particularly describing it, in favor of Willard N. Oliver, Horace G. Clark, Alanda W. Clark, and Norman Clark, giving them similar rights as to entering upon the premises for the purpose of opening, developing, and working marble quarries thereon, within the time therein limited. Within a few days after the giving of these bonds, they were recorded in the town clerk's office of the town in which the land is situated. On January 1, 1869, Mead and his wife gave a warranty deed in favor of the obligees in the bond first mentioned, the description therein of the land conveyed being identically the same as the description in that bond, complete in itself, and as follows (we number the calls for convenience): (1) "Commencing at a point on the first stone wall west of the highway leading past the premises of the said Mead, 10 rods south of said Mead's north line, the north end of said stone wall being 55 1/2 rods westerly from said highway and said point being on said stone wall 10 rods south of said Mead's north line; (2) thence southerly on said wall 10 rods; (3) thence westerly parallel with said Mead's north line 56 rods to a stake and stones; (4) thence northerly at right angles with said last-mentioned line to a point 10 rods south of said Mead's north line; and (5) thence easterly to the place of beginning." Through this deed the plaintiff traces its chain of title from the common grantor; and in the successive subsequent conveyances, the description of the land is the same as the foregoing, either given in full, or by reference to this deed.
On the same day Mead and his wife gave a warranty deed in favor of the American Marble Company, the description therein of the land conveyed being identically the same as the description in the bond secondly above mentioned, complete in itself, and as follows (we number the calls for convenience): (1) "Commencing at a point on the first stone wall west of the highway leading past the residence of said Mead 20 rods south of said Mead's north line, the north end of said stone wall being 55 1/2 rods westerly from said highway, and said point being on said stone wall 20 rods from said Mead's north line; (2) thence southerly on said stone wall to the end of the same and thence southerly on the fence that joins onto the same in all 20 rods to a maple tree; (3) thence westerly 56 rods to a stake and stones; (4) thence northerly at right angles with said last-mentioned line to a point 20 rods south of said Mead's north line; and (5) thence easterly in a line parallel with said Mead's north line to the place of beginning. " Through this deed the defendants trace their chain of title from the common grantor; and in the successive subsequent conveyances, the description of the land conveyed is the same as the foregoing, either given in full, or by reference to this deed, or to some other deed in the chain of title.
The question arises as to the true interpretation of the boundaries contained in these two deeds from Mead. Mead's north line runs practically east and west. The stone wall mentioned extends from this north line somewhat southwesterly for a distance of approximately 22 1/2 rods. No uncertainty in the description so far as the reading of the deeds goes, is claimed. And the only part of the boundary contained in the deed in the plaintiff's chain of title concerning which any real question can arise as to its meaning when applied to the land, is the point of commencement: whether this is to be found by measuring at right angles (practically south) from said north line at a place where such a...
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