Perkins v. West

The opinion of the court was delivered by Redfield, J. Action of trespass for an assault. The defend- . ant pleads, among other things, that the assault was made in defence of his rightful possession. The plaintiff and her husband had been in possession and constant use of the barn in question for several years, the legal title being in the plaintiff. The barn, with twenty acres of land, was subject to a mortgage to one Bassett; and on the 8th day of June, 1878, the plaintiff and her husband by warranty deed conveyed said premises to said Bassett. At the time of said conveyance the parties to the deed made a parol agreement, and the town clerk at their request made a written memorandum of it, the substance of which was that the plaintiff should continue to possess and occupy the premises and pay the annual interest on said mortgage, and the instalments of the principal as the same became duo, and if the plaintiff paid the mortgage debt within five years, the premises should be re-deeded to the plaintiff. Bassett conveyed said premises to the defendant’s wife on the 10th of January, 1880. The plaintiff kept her hay, grain, and cattle in said barn ; and while plaintiff’s son was temporarily absent from said barn and premises the defendant went in and began to remove the manure therefrom, and claimed to have taken peaceable and legal possession of the same. When the plaintiff and her son were made aware of the defendant’s acts and claim, they required the defendant to desist and retire from the premises. The defendant refused, [269] and persisted in removing the manure and holding the possession to the exclusion of plaintiff, which was the occasion of a collision and of this suit. I. The plaintiff’s title to the premises was that of mortgagee . in possession. The possession of the premises by the plaintiff with her hay, grain and cattle was sufficient to put the defendant upon inquiry when he took his deed from Bassett. And he is affected with notice of such legal or equitable rights as the plaintiff possessed. It is always competent for the grantor in possession to prove that a deed absolute in form is a mortgage merely. And if in fact the deed is security for a debt, which continues to subsist as a debt after the execution of . the deed, it is a mortgage whatever be the form- of the conveyance. These principles have been so often recognized by the courts of this State that it would not seem that authorities are required. See Wing v. Cooper, 37 Vt. 169; Big elow v. Topliff, 25 Vt. 273 ; Graham v. Stevens, 34 Vt. 166 ; Wright v. Bates, 13 Vt. 341; Rich v. Doane, 35 Vt. 125. II. The charge of the court in substance, that if the plaintiff was occupying the barn with her cattle, and hay and grain, the temporary absence of the man having charge of the cattle for the plaintiff did not leave, the premises vacant; but if the plaintiff had fulfilled her contract with Bassett she was rightfully and legally in possession, and the intrusion of the defendant into the barn tortuous and wrongful, was in accord with the law as settled by repeated decisions of our courts. Judgment affirmed.