Wilkins v. Somerville

• Decision Date: 10 May 1907
• Citation: 80 Vt. 48,66 A. 893
• Parties: WILKINS v. SOMERVILLE et al.
• Court: Vermont Supreme Court

66 A. 893

80 Vt. 48

WILKINS

v. SOMERVILLE et al.

Supreme Court of Vermont. Chittenden.

May 10, 1907.

Appeal in Chancery, Chittenden County; Willard W. Miles, Chancellor.

Bill by John S. Wilkins against Samuel Somerville and others. From a decree dismissing the bill, the orator appeals. Reversed and remanded, with mandate.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

H. S. Peck, for appellant. M. M. Gordon and Geo. W. Wing, for appellees.

WATSON, J. On January 16, 1902, a contract was made between the orator and the defendant Samuel Somerville, by which it was agreed that the orator should pay the sum of $6,000 for that part of Somerville's farm lying in Duxbury, containing his homestead, and that the deed thereof, when made, should be deposited with the Capital Savings Bank & Trust Company, in Montpelier, in escrow until that sum should be paid. The farm was believed by both to contain valuable veins of asbestos and talc, and this they had in view in their negotiations. On the same day a warranty deed of the property was duly executed by Samuel and his wife, the defendant Eliza M. Somerville, to the orator, and was deposited by the direction of Samuel with the bank in escrow; but, instead of the condition being pursuant to his agreement with the orator, he directed the depositary to hold the deed until $6,000 should be deposited to his credit, or until called for by him or his attorney after 30 days from date. The orator neither consented to, nor had any knowledge of, any change in the condition; nor was he afterwards informed of it. Indeed, never thereafter did Samuel make reference to the time the deed should remain in the custody of the bank, until September 19th, when he wrote the orator that after 30 days he should think best to take it therefrom. Again, October 6th, he in like manner notified the orator that the date for withdrawing the deed was October 20th, advising him that what he did must be done before then. In answer to each of these communications, the orator protested against its withdrawal. Later Samuel extended the date to October 30th, and the depositary notified the orator that, unless payment be made by that time, the deed would be returned to the vendor. Thereupon the orator protested to the latter that under their agreement he had no right to recall the deed. On the day before the bank was thus to return the deed, an order was issued restraining it from so doing. On the same day, Samuel and wife by their deed of warranty conveyed the land, together with land in Fayston, to the defendant Mark Mears, who in making the purchase was cooperating with defendants George D. Mears, A. W. Slocum, and Mathew M. Gordon; it being understood and agreed between them that Mark Mears should furnish the money to pay for the property, hold the title, and transfer the same to a company to be formed by them. In this purchase the consideration to be paid was $6,000, of which $2,500 was paid by check, with an agreement to pay the balance in 60 days. The deed to Mears was sent by him to the defendant Eber Huntley, town clerk of Duxbury, for record. Soon thereafter this suit was commenced, with a temporary injunction holding the deed and the title to the property in statu quo.

The vendor, when depositing the deed with the bank, undoubtedly was competent to annex such conditions to its delivery to the orator as he saw fit, even to the extent of retaining the right to withdraw it from the custody of the depositary at any time, or after a specified time. The fact that in so doing he violated the terms of his contract does not change the situation in this respect, nor give the deed any force which it would not otherwise have. Stanton v. Miller, 58 N. Y. 192. No title could pass by it without a compliance with the conditions of the deposit

It is clear that the orator cannot have adequate remedy by an action at law. In view of the conveyance...