Buckmaster v. Needham

[621] The opinion of the court was delivered by Royce, Ch. J. The orators brought their bill to foreclose a mortgage executed to them, in 1837, by the defendant Horace Needham. And, to entitle them to all the relief sought against the other defendants, it was necessary to show, that Horace Needham had an estate in one third of the farm at the time of giving the mortgage. If he then had no title, the orators could only claim to hold, by operation of the covenants in the mortgage deed, the interest which, in that case, must afterwards have come to him by inheritance from Benjamin Needham, his father; and that interest was less than the one which the deed purported to convey. It is contended by the other defendants, that, at the date of the mortgage, he had no interest whatever in the farm; but that his estate, acquired under the deed from Benjamin Needham, in 1828, had been forfeited and determined, in consequence of his neglect and refusal to make the annual payments to said Benjamin, according to the condition annexed to that conveyance. There is some apparent incongruity between the different parts of that condition; and perhaps it might well be questioned, whether the non-payment of the annual thirty dollars was really intended, under any circumstances, to affect the estate of Horace after the decease of his parents. But such a question has not been raised by counsel, and this branch of the case will be determined with reference only to the concluding part of the condition. That professed to avoid the deed entirely, if any of the annual payments should be called for, and not made. And to make good this ground in the defence, it must be shown, that a cause of forfeiture occurred, and that the forfeiture was actually claimed and taken. It is not at present deemed important to inquire, whether the deed was founded upon an actual consideration of value, beyond the annual payments provided for in the condition, or whether, aside from those payments, it was a voluntary conveyance. Such an inquiry may sometimes be important, when a party comes into a court of equity to seek relief against a forfeiture; but such was not the admitted or apparent object of the bill in this case. It is evident, that the payments mentioned were not expected to be annually needed, as means of support for the parents, and possibly they were not relied upon at all for that purpose. And hence [622] the annual thirty dollars was not made payable absolutely, but only in the event of being called for ; — like a limited amount of spending money, to be supplied at stated periods to aged parents, in case they shall see fit to require it. Neither should the condition be so construed, as to permit the sums to be consolidated, and demanded together after the lapse of several years. It was required, that each sum should be demanded by itself, and at or about the close of the year, for which it was claimed. And any sum not so demanded was waived, or relinquished. Nothing in the nature of a debt would arise without the proper demand. At the same time, a sum duly demanded, and not paid, should doubtless be treated in equity as a lien upon the estate, if the forfeiture were not enforced. But it was found by the master, and must have been so considered by the chancellor, that none of these annual sums had been regularly demanded. And although there can be no doubt, that Benjamin Needham repeatedly declared they had not been paid, and pronounced the title of Horace worthless for that reason, yet we do not find it proved by the evidence before us, that any such demand, as the case required, was ever in fact made. And since a valid cause of forfeiture could only arise upon demand and non-payment, it follows, that no such cause was established. This ground of defence must therefore be overruled; and it will be immaterial, so far as the title of Horace was concerned, whether Benjamin Needham ever designed, or attempted, to enforce a forfeiture. The remaining ground of defence is, that Benjamin Needham was in possession of the entire farm, holding adversely to Horace, when the mortgage was executed; and that it was thereby rendered void under the statute. The evidence to make out such an adverse possession at that time is derived from the fact, that Horace had removed from the farm some two years before, leaving the whole possession with Benjamin, — and from various declarations of the latter, in effect denying that Horace retained any title, or interest, in the farm. It is claimed, that the removal should be treated as an absolute abandonment on the part of Horace. But the testimony is silent as to the cause and purpose of that act; and a sole possession by one tenant in common is not presumed to be adverse to the co-tenant. The ordinary presumption is, that such a possession is beld in the right of both tenants. And although this presumption [623] may be rebutted by evidence, yet, to render void a deed of the tenant out of possession to a third person, such tenant, or his grantee, should be affected with notice of the adverse holding, at the time of the conveyance. The doctrine on this point, as established between landlord and tenant, is obviously applicable to cases like the present. But most, if not all, of the hostile declarations of Benjamin Needham, which are relied on as having characterized his possession, appear to have been made after the orators received their mortgage. And hence, although the possession may have been intended to be adverse to the title of Horace, there was not seasonable and sufficient notice of it to him or the orators to avoid the mortgage. Sail v. Dewey et al., 10 Vt. 593. The decree of the chancellor is affirmed.