Austin v. Downer

The opinion of the court was delivered by Redeield, Ch. J. A deed conditioned to become void, unless [563] a certain amount is paid, by a day certain, has been regarded as in effect a deed of mortgage, from the debtor to the creditor. It is not improbable, that according to the strict rules of the common law, some slight difference might be made in the two cases. But this difference is one, not likely to be appreciated by common men, and when the object is to come at the real intention of the parties, we can scarcely feel justified in deciding the import of a deed, different from the obvious intention of the parties. If a security be given for the debt, it is to all intents a mortgage. If no security for the debt is given, separate from the deed it is more in the nature of a right of repurchase, in as much as there is an election in the grantor, whether to pay the price, or not, unless the contrary be expressed in the deed. If a security be given, it must be produced by the mortgage. If that be done, the burden of proving payment is thrown upon the promisor. If no security separate from the deed, appear to have been given, and the sum be payable in money, at a given day, the happening of the day, imposes the obligation of payment. And as payment is an affirmative fact, not to be presumed, it becomes incumbent upon the promisor, to prove such payment at the day, or a breach of the condition occurs, which operates by way of limitation of the estate; and in such case there is no necessity of formal entry, in order to revest the estate, as the law does that,, at once. The proof, then, in this place, was properly regarded to come from the defendants. And that which was put in, was no doubt exceedingly slight and unsatisfactory; but still, such, we think, as might well have been submitted to the jury, under proper restrictions and limitations. And as the case must be opened, we think, upon another point, and the same state of facts may not again arise, we forbear farther remark upon this point. This is a case where no seizin accrued to the intestate. The disseizin complained of, must have arisen after the death of the intestate, and in contemplation of law. Since the appointment of the plaintiff, as administrator, the proof of his appointment becomes a part of the plaintiff’s title to recover, and should have been shown; and for this reason, the case must be opened. It does not occur to us, that there is any objection to this recovery being had, by the administrator. A stranger to the deed could not [564] take advantage of a limitation of the estate, although made to depend upon an event, in which he was interested. And the consideration, that the recovery, when had, is for the benefit of all the heirs, seems to us to favor the same view. ' Judgment reversed and new trial. Note. — In Aldis v. Burdick, this court did admit proof of the plaintiff’s appointment, as executor, to be made in this court. But in the subsequent case of Blake Goodhue v. Tucker, 12 Vt. 39, it was expressly determined that no new proof could be admitted in this court, and judgment was affirmed against the party; which is altogether a more stringent course than to reverse it, thus giving the party an opportunity to retrieve his errors. And this case has been since always followed.