of Doane v. Doane

The opinion of the court was delivered by Wheeler, J. When Birchard yielded to the defendant’s claim that he had an equity of redemption, and Birchard only a mortgage estate in the farm and lands, the defendants right to the equity of redemption was well established as to all parties, and he thereafter was entitled to it, the same as if his right to it had not been disputed. And when Birchard, at the request of the defendant, convoyed the farm aiid lands to the trustee in this suit, the trustee took the title to the equity, in trust for the defendant, and after that time held it to his use as his trustee. And when the trustee, by sale and conveyance of the farm and lands, converted .the equity of redemption into money in his hands, he held the — 492 — money as trustee of the defendant, the same as he had be fore'held the equity of redemption. The equity of redemption was the whole estate in the land, subject to the mortgages charged upon it; and what there was left of the whole avails of the land, after satisfying the mortgages out of the avails, was the consideration received for the equity of redemption, and stood-in the trustee’s hands in lieu of it; and so much of the avails of the equity as the trustee had received and had not parted with for the defendant at the time of the service of the writ in this case, he held then as trustee of the defendant at that time. The whole proceeds of the land sold and conveyed to Stickney, wont to pay the mortgage to Birchard, which was charged on the land, and which it was the duty of the defendant to pay, and to pay $52 which the defendant owed to Stickney, so that none of the avails of that land was in the hands of the trustee for the defendant. The lands not sold and conveyed, and which the trustee still holds, he holds in trust for the defendant, and does not owe the trustee for. These lands are not such goods, chattels, rights, credits, or effects of the defendant in the hands of the trustee, as can be held by the trustee process. They áre not goods or chattels that could be delivered over by the trustee to an officer, to be sold on execution-; nor could he be held as trustee in this action for the value of them in money, without compelling him. to purchase them at that price. Hunter v. Case et al. & Tr. 20 Vt. 195 ; Stevens v. Kirk & Tr. 37 Vt. 204. • The rest of the farm and lands the trustee conveyed to Moore, and he received therefor from Moore $6,500. ■ He appears to have paid the Hammond mortgage, $3,799.73, and other sums stated in the disclosure and allowed by the commissioner, to the amount of $1,917.30, for the defendant, which payments left in his hands $782.97. This sum is to be varied according to the way in which questions that have been made with reference to a part of it being-due for the defendant’s homestead, to the land which came from the estate of the trustee’s mother, and to allowing the trustee for the defendant’s support, are decided. The report of the commissioner does not expressly state that — 493 — the defendant resided upon the farm up to the time when it was sold and conveyed to Moore; but it does state that the trustee worked for the defendant on the farm three years ending in 1867, and that he and his wife lived with the defendant during that time, and that the trustee then carried on the farm one year at the halves, and that during that year, the trustee and his wife lived with the defendant in the same house, and with the defendant as one family, and used the proceeds of the farm in the mutual support of their families, and that in the year 1869, and since, until the farm was sold to Moore in September, 1871, the trustee carried on the farm, and he and the defendant used the proceeds of the farm as during the year when the trustee carried on the farm at the halves. This shows clearly, although only impliedly, that the trustee resided upon the farm, and used it as a homestead until the sale and conveyance of it to Moore. When Birchard yielded to the claim of the defendant that he had an equity of redemption in these premises, and conveyed them to the trustee in obedience to that claim, the trustee acquired the legal title only, and held that in trust for the defendant, while the defendant himself was the equitable owner of the right to redeem the premises he had resided upon and occupied as before stated. It is well settled that a homestead right, exempt from attachment, may exist in a mere equitable interest in premises occupied or used or kept as a homestead. Morgan v. Stearns et al. 41 Vt. 398. The laws of 1865, No. 14, p. 25 (Gen. Sts. p. 874), provide'that no person, &c., shall be liable or chargeable on any trustee process, on account of any sum due or owing to the principal debtor for any property sold and conveyed or delivered by him, which was at the time of sale exempt from attachment and execution by the laws of this state. The trustee appears to have conveyed the farm to Moore, with the knowledge and acquiescence of the defendant; and that conveyance, without doubt, carried to Moore the whole estate in the land, including the equitable interest of the defendant. The trustee held the legal title by force of the conveyance from the defendant to Hammond. The whole transaction amounted to a sale and conveyance by .the defendant, of his homestead right in the farm. The trustee held the avails of that sale; and so much — 494 — of those avails as he received for this homestead right, was due .and owing from the trustee to the principal debtor for such right, and, according to that statute, the trustee cannot be held liable or chargeable on account of it. The amount received for that right is presumed to be $500, inasmuch as the equity of redemption in which the homestead right existed, exceeded that sum in value, and only that value in a homestead is exempt. This sum of $500, taken from the sum last before mentioned, would leave $282.97, as the largest sum for which the trustee can be held liable in any event. The piece of land that came from the estate of the trustee’s mother, appears to have been conveyed to Stickney, and the consideration for it to have been paid by him to Birchard, towards the mortgage due to Birchard from the defendant. The value of it is stated in the report at $880, and it must be presumed, in the absence of any further finding, to have been sold for that amount, and, consequently, to have paid that amount on that mortgage. This piece of land appears to have been paid for to the extent of $500, from property bequeathed to the trustee’s mother, who was the defendant’s wife, by her mother, and it does not appear that this part of the bequest was ever reduced to possession by the defendant or claimed by him. Nor does it appear that he ever paid anything for this land, nor even that the price of it was more than was paid out of her bequest. The title to it appears to have been conveyed to her; and, for anything that appears, it was her land. When she died, the defendant must have become entitled to a life estate in it as tenant- by the curtesy, and the reversion have descended to her children, the trustee and his brother and sister. This land was subject to a mortgage to Race, which, when paid, amounted to $359.98, and was paid off by the trustee, and allowed and reckoned to him in the sum of $1,917.30 before mentioned. It does not appear from the report, to whom it belonged to pay off this mortgage. If it belonged to the defendant to do it, then the trustee has been allowed no more than he should be on account- of having paid it, and there still remains his share in the reversion that has gone to pay the Birchard mortgage for the defendant, that he has not been allowed for, and he is entitled to — 495 — be allowed a further sum, equal in amount to the value of that share. If it did not belong to the defendant to pay the Race mortgage, but it rested upon the estate, to be taken care of by those to whom it fell, then the trustee should be allowed, in addition to what he has been allowed, the value of his share in this land, subject to his share of the Race mortgage, because that, and that only, moved from him, in respect to this land, to pay the Birchard mortgage. As to how much of the Race mortgage his share in the reversion should bear, if any, the general rule is, that the tenant for life is holden in equity to pay the interest accruing during his enjoyment of the estate, and that the reversioners are holden to pay the principal. It does not yet appear in this case how much of the sum paid on this mortgage was interest, nor how long the defendant as life tenant enjoyed the life estate. Nor does the value of the trustee’s reversion in this land, either clear of, or subject to, this mortgage, appear. Consequently, the amount proper to be deducted from the sum mentioned in the hands of the trustee that he can in any event be holden for, cannot be ascertained till further facts are reported. As to the claim that the trustee should be allowed for the support of the defendant, it appears from the report that he has furnished such support since the sale to Moore, in September, 1871. The commissioner further reports, that no express contract was ever made between them about it, and that the defendant never told the trustee he should pay, nor the trustee the defendant he should charge, anything for it; and he decides that the trustee is not entitled to be allowed anything for it, and allows nothing for it accordingly. Up to the time of the sale of the farm, the trustee does not appear to have been supporting the defendant, any more than the defendant was the trustee ; therefore, thfe support furnished was not the mere continuation of support which had been furnished without charge, according to the understanding of the parties, nor under circumstances such that the law would not allow any charge to be enforced. The trustee had means in his hands belonging to the defendant, and with which, if paid over, the defendant could procure his own support. The trustee furnished the support, and these circumstances would help the implication — 496 — that it was to be paid for. There is nothing to rebut that implication, but the relationship ; and the case shows that as to other matters, they dealt as debtor and creditor, and the relationship, of itself, does not seem to be sufficient to single out this matter of valuable transaction, and to show that it was not to be reckoned between them. Under the circumstances, it- seems that this support should be allowed to the trustee from the time of the sale to Moore, in September, 1871, to the date of the writ, February 12th, 1872. The judgment must therefore be reversed, and the cause recommitted to the commissioner, to report the value of the trustee’s share in the land inherited from his mother ; the facts in relation to the mortgage upon it; and the value of the support furnished. Judgment reversed, and, at request of parties, cause remanded.