Lavigne v. Naramore

The opinion of the court was delivered by Royce, J. On the 15th day of December, 1873, the orator executed a contract to Howe and Folsom by which he acknowledged he had that day received from them a horse for which he agreed to pay them the sum of one hundred and seventy-five dollars, with interest, on or before the 1st day of April then next, and that the horse should be and remain the property of Howe and Folsom, and be at their full control and disposal, in case said payment should not be made. The orator at the same time and by the same contract assigned to Howe and Folsom the other articles of personal property described in the bill, to secure the payment of said $175, with a like right to dispose of the same, if the $175 should not be paid. Payment was not made by the orator. The property has come into the possession of the defendants, and this bill is brought to redeem it. The orator’s right to the property has never been foreclosed, neither has there been a sale of the property by the mortgagee upon notice to the mortgagor, and the orator has never parted with his equitable interest in the property. The defendants claim title under a purchase of the interest of Howe and Folsom in the property, and under that claim of title they took the property out of the possession of the orator, without his consent and with full knowledge of the equitable claim that he made to it. The contract made between the orator and Howe and Folsom was in legal [270] effect a mortgage of the property to secure the payment of 1175. Blodgett v. Blodgett, 48 Vt. 32. The orator not having been barred from an equity of redemption by foreclosure or sale, he has the right now to redeem unless he has lost it by lapse of time. While it is true that the right to redeem personal property which has been mortgaged may be lost by lapse of time, it is at the same time true that there is no rule of universal application prescribing the time within which the right must be asserted. The party must insist upon his right within a reasonable time, and what is a reasonable time, must be determined from the evidence. Applying that rule we think the orator’s bill was seasonably brought. There is no occasion to notice the question made by the pleadings and in argument in relation to a tender having been made of the amount due from the orator, or of the evidence relating to that matter. There was no legal necessity for the making of a tender, and whether one was made or not is only important as affecting the question of costs. The question of costs was left by the decretal order to be determined on the coming in of the master’s report on final decree. . The Court of Chancery decreed that the orator was entitled to redeem the property, and referred the matter to a master to ascertain the amount due to the defendants, and directed him in ascertaining said amount to charge the defendants with the value of the use of the property while it had been in their possession and the value of such of the property as had been used up, destroyed, or sold by them. Decree affirmed, and cause remanded.