Waite v. Stanley

• Decision Date: 12 December 1914
• Citation: 88 Vt. 407,92 A. 633
• Parties: WAITE v. STANLEY.
• Court: Vermont Supreme Court

92 A. 633

88 Vt. 407

WAITE

v. STANLEY.

Supreme Court of Vermont. Lamoille.

Dec. 12, 1914.

Exceptions from Lamoille County Court; Frank L. Fish, Judge.

General assumpsit by S. B. Waite against Henry I. Stanley. There was a judgment for plaintiff, and defendant excepted. Exceptions sustained.

The declaration is in general assumpsit. Plea, general issue. The trial was by the court. On the facts found judgment was rendered for the plaintiff to recover the sum of $854.03, and costs. One item of the plaintiff's specifications, which was allowed and entered into the judgment, was: "To balance payment due November 11, 1911, and interest due November 11, 1912, $598." This item was the unpaid balance of the first installment of purchase money stipulated to be paid in the land contract signed and sealed by the parties, which, so far as material in this case, was as follows:

"Articles of agreement, made the 31st day of October, A. D. 1911, between Smith B. Waite, * * * of the first part, and Henry I. Stanley, * * * of the second part, as follows, to wit: The said party of the first part, for the considerations hereinafter named, hereby agrees to sell to said party of the second part, who hereby agrees to purchase, the following described lands and personal property consisting of farm and dairy tools, live stock, etc., namely: * * *

"The said party of the second part agrees to pay to said party of the first part, for the said premises and above-described personal property, the sum of six thousand dollars, in the following installments, that is to say: Twelve hundred dollars on or before the tenth day of November, 1911; then two hundred dollars and interest on the whole unpaid debt on or before the 11th day of November in each year for four succeeding years (1912, 1913, 1914, and 1915); then five hundred dollars and interest each year and interest until the full amount of the purchase price has been paid.

"And the said party of the second part does hereby agree to pay all taxes, rentals, assessments, and insurance imposed on said premises when they are due each year, 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 for making necessary buildings or repairing the same, or for fences or for fuel; and the said party of the second part shall carry on and cultivate the farm in good, husbandlike manner, and shall care for the stock in the same manner, always keeping them in good order and condition, and shall improve the buildings to the extent of at least $150 each year by the way of repairs.

"It is further agreed that the ownership of all personal property and additions thereto is and is to remain in the said S. B. Waite.

"It is hereby agreed that, if the said party of the second part shall fail in the performance 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 the contract forfeited and vacated, and to re-enter upon and take possession of said premises, and all buildings and improvements thereon, and all accretions of personal property on said premises, 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.

"It is further agreed by and between the parties of the first and second part that the ownership of all the products of the dairy and farm of all description shall be and remain in the party of the first part until the obligations due each year are fully paid.

"And the said party of the first part does hereby agree that on payment of said 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 or his heirs or assigns will, by a good and sufficient warranty deed, convey or cause to be conveyed to the party of the second part his heirs or assigns, the aforesaid hereditaments and premises."

The plaintiff offered this contract in evidence: (1) For the purpose of showing the agreement for the payment of the $1,200; and (2) in connection with the testimony of the witness as to the extension of his contract by parol. The defendant objected to its admission on the grounds: (1) That the action is general assumpsit, and the item for the part of said $1,200 unpaid cannot be recovered, the contract being executory; (2) because the agreement is under seal, and the action to recover the claimed amount is under covenant, not assumpsit. The evidence was admitted, and exception saved. Defendant also excepted to the judgment rendered, on the ground that it contained the item of $598.35 arising under the land contract.

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

R. W. Hulburd, of Hyde Park, and M. P. Maurice, of Morrisville, for plaintiff.

W. B. Locklin, of Richford, for defendant.

WATSON, J. Although the contract upon which the plaintiff bases his right to recover the item in dispute was for the sale by him to the defendant of both land and personalty, yet the consideration was single, the contract indivisible and entire. Fay v. Oliver, 20 Vt. 118, 49 Am. Dec. 764; White v. White, 68 Vt. 161, 34 Atl. 425. It was also executory.

At law, it merely imparted to the defendant an inchoate and imperfect right. The ownership of the property remained in the plaintiff. To make the ownership of the defendant complete, something remained to be done by the plaintiff: He must pass his legal interest in legal form. In other words, he must convey the property according to the mode of conveyance required by law. This he was not obligated to do until full payment of the purchase money and interest had been made by the defendant in annual installments covering a period of 12 years. In Vermont Marble Co. v. Mead, 85 Vt. 20, 80 Atl. 852, it is said that:

"In law, a contract for the sale of land is wholly, and in every respect, executory; the vendor remains to all intents the owner of the property, and can convey it free from any legal claim or incumbrance; and the vendee acquires no interest whatever in the land."

Under the contract the defendant had the right of possession. By its terms $1,200, the first installment of the purchase money, was to be paid on or before November 10, 1911. It was not so paid. At some time— but when does not appear—it was paid in part, leaving unpaid the sum of $598.35, the amount of the item in controversy. The plaintiff says the time of the payment of this sum was extended by parol. The record, however, does not show such extension to any definite time, nor upon any new consideration, nor that the defendant was not in default as to such payment at the time of the commencement of this suit and the suit in equity hereinafter noticed. The second installment was stipulated to be paid on or before November 11, 1912. Whether it was so paid does not expressly appear, but we assume it was not. This action was commenced two days after this installment became due, and on the same day strict foreclosure proceedings in equity "were brought on said contract" by the plaintiff, and therein a decree was taken in his behalf, which decree became final May 5, 1913, a day prior to the trial of this action at law in the court below. When these two suits were commenced the defendant was in default in payment of the purchase money to the extent of the unpaid portion of the first installment and the second installment By reason of such default, the plaintiff saw fit to avail himself of the provision of the contract allowing him, if defendant should fail in performance, "to declare the contract forfeited and vacated, and to re-enter upon, and take possession of, said premises." The foreclosure proceedings must have been for the effective enforcement of this provision (being "brought on said contract"), and the decree therein conclusively shows that the defendant had failed to perform, and that, by reason thereof, the plaintiff was entitled to put an end to the contract and be restored to the possession of the property agreed to be conveyed. No intimation is made of nonperformance in any respect other than as above stated.

In equity, after the contract was signed by the parties, although the equitable estate vested in the defendant, yet the legal estate remained in the plaintiff, he holding it as trustee for the defendant, and having a charge or lien on the estate as security for the payment of the unpaid purchase money, and, in the absence of stipulations to the contrary, a right to retain the possession until the purchase money is fully paid. Wilkins v. Somerville, 80 Vt. 48, 66 Atl. 893, 11 L. it. A. (N. S.) 1183, 130 Am. St Rep. 906; Van Dyke v. Cole, 81 Vt. 379, 70 Atl. 593; Vermont Marble Co. v. Mead, 85 Vt. 20, 80 Atl. 852. In Lysaght v. Edwards, L. R. 2 Ch. Div. 499, Sir George Jessel, Master of the Rolls, saying the effect of such a contract for sale of real property was so completely settled before the time of Lord Hardwicke that he spoke of the settled doctrine of the court as to it, stated it as follows:

"It is that the moment you have a valid contract for sale the vendor becomes, in equity, a trustee for the purchaser of the estate sold, and beneficial ownership passes to the purchaser; the vendor having a right to the purchase money, a charge or lien on the estate for the security of that purchase money, and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivering possession."

The extent of the vendee's equitable estate is well stated by the Supreme Court of the United States in Jennison v. Leonard, 21 Wall. 302, 22...