Frizzle v. Dearth

The opinion of the court was delivered, at the circuit session in September, by Redeield, Ch. J. From the bill, answers and testimony in this case we are satisfied that after the death of Amasa Frizzle, his widow, the defendant Dorotha, became anxious to be relieved from the further performance of the contract, after the supplies her husband had furnished were exhausted, and she had herself furnished them one year, and requested the orator to make some arrangement for that purpose, which was finally effected by Benja [790] min C. Frizzle assuming the duty of maintaining his father and mother, and taking the property. At this time, it is very obvious, all the parties concerned were fully satisfied with the arrangement which was made, and the widow of Amasa, the defendant Dorotha, gave a full release of the land which seems to have been regarded, at the time, as sufficient to vest the title in Benjamin C., and she received all she demanded for what she and her husband had done towards the performance of the contract. Benjamin C. soon deceased, and this deed was surrendered to the defendant Dorotha, because the administrator could not be allowed to undertake the performance of any such contract. But the orator still continued to get his support out of the property, without any aid from Dorotha, or any one on her behalf, she, in fact, regarding herself as released from the contract, and so she seems to have been regarded by all concerned till the bringing of the bill in this case. The property having been surrendered to the orator, since the death of his son Benjamin G., and he having Been left to shift for himself, it seems to us reasonable that the title should be quieted in him. There seems to have been such a failure to perform the contract, that, upon this bill to foreclose the equity of redemption in the defendants, the orator is entitled to the decree asked for. The case is similar in its equities to that of Devereaux v. Cooper, 11 Vt. 103. The mortgage seems to have been paid off by means-of properly coming from the orator. There is no cross bill claiming anything on the ground of part maintenance. It would be difficult, if not impossible, for the heirs or personal representatives of Amasa to perform this contract. And now, after having been abandoned for so long a time by them, it will be impossible for them to make amends for past delinquencies. The decree of the court of chancery seems to have been in all respects equitable, and it is affirmed. We see no good reason why the defendants should be entitled to costs in this case, as in a bill to redeem. It is more like a bill to-foreclose. Decree affirmed.