Joslyn v. Orinda

The opinion of the court was delivered by Taft, J. The premises in question were conveyed to John G. Parlin by deed with a condition, among other things, that ho should faithfully support the defendant, Orinda Parlin, supplying her with all things necessary for that purpose, specifying them in detail. The orators claim under a conveyance from said John G. The defendants contend that the conditions of the deed cannot be performed by any one except the grantee ; that the contract requires the performance of the duties specified in it, by him personally. There is force in the suggestions, made upon this point, by the defendant’s counsel. Such contracts are usually made between relatives, and, generally, on the part of aged people, for the purpose of making “ the residue of a declining life a period of comfort and enjoyment.” But courts must construe contracts as made by the parties, in the light of all legitimate surrounding circumstances. Parties to such contracts may expressly stipulate that the support to be furnished under them shall be provided by one personally, and if not so done, that the estate shall be forfeited. Shall we give the contract in question that construction ? It is well settled in this State that a court of equity may in.its discretion grant relief from the forfeiture of an estate, conditioned for the maintenance and support of a person, where the forfeiture is incurred, and the relief is asked, by the original party to the contract. Austin v. Austin et al., 9 Vt. 420 ; Henry v. Tupper et al., 29 Vt. 358. In Weeks v. Boynton, 37 Vt. 297, the suit was between the original parties to the contract, and the condition similar to the one under consideration ; and the court said that equity would relieve the defendant from a forfeiture “ on such terms as would provide a full compensation and indemnify for all which he has lost by reason of the breach complained of.” In Dunklee v. Adams, Admr., 20 Vt. 415, where relief was refused, the decision was put upon the ground, that upon the facts in that [676] case, relief ought not to be granted, and not that the court had no power to do it. But the question is made in this case whether the obligation to furnish support to said Orinda during her life, can be discharged by an assignee of John G. Parlin, the grantee in the deed. We think this question has been determined in the affirmative by the cases cited. In Austin v. Austin et al., supra, the defendant Raymond was a subsequent mortgagee claiming under his co-defendant, who had given a mortgage conditioned for the support of his father, the orator, and the question was, as stated by the court, whether Raymond should be let in to perform the condition of the deed ; and the chancellor (Phelps) says: “ As to future support, the contract is as susceptible of performance by Raymqnd now, as it was by Alanson in the outset ” ; and although it has been denied that this case is authority, upon this question, we think the principle of granting relief to an assignee is clearly recognized. In the case of Henry v. Tupper et al., above cited, the question of granting relief in such cases was very thoroughly discussed, and decided in the affirmative ; and as the orator was an assignee, claiming under conveyances executed by the original party, and in no way connected with the father, whose support was secured by the contract, the case must be regarded as an adjudication of the question and decisive of the case at bar. Like relief was granted in the unreported case of Hitchcock v. Richardson et al., heard in Rutland County at the January Term, 1881. The orator was a subsequent mortgagee, and was permitted to perform the condition of a devise by furnishing a home for a defendant, an obligation originally resting upon her brother who had mortgaged the estate to the orator. As to costs we see. nothing to except this case from the general rule that this court will not disturb a decree of the Court of Chancery on the question of costs alone. 20 Vt. 272, 682. But as we understand the decree, it applies to costs only to the time of its rendition ; and as it becomes necessary that the case should be continued in court, for the reasons stated in decretal order, we think the defendant, Orinda, should be entitled to her costs (with all reasonable and necessary counsel fees) accruing after [677] the final decree at the next term of the Court of Chancery, as it is not her fault that the cause is retained on the docket. The suit of Charles 0. Parlin should be perpetually enjoined. The decree of the Court of Chancery is affirmed, and cause remanded.