Still v. Buzzell

The opinion of the court was delivered by Ross, J. The master has found that the deed of the Miller lot, though absolute in form, was, between the orator and oratrix and the defendant, given to secure the defendant for taking up the Miller notes then resting upon the premises, which the defendant agreed to do, and did subsequently do, and to cover the property and prevent any other creditors from troubling them. The bill is brought to compel the defendant to redeed the premises, the complainants claiming that they [483] bad paid the defendant the entire debt secured by the deed. The defendant contends that he has not been paid what the deed was given to secure, and that if he has been, the complainants are remediless, because the deed was given and accepted to prevent any other creditors from troubling them. I. Upon the facts found by the master, the debt secured by the deed bad not all been paid at the time the bill was brought, but had been at the time of the hearing, by the use of the mortgaged premises. The complainants do not offer in the bill to pay the defendant any balance which might be found due him, on full accounting. This is necessary in a bill to redeem if the orator would avoid the risk of a balance being found against him. Strictly, the bill must be framed to the circumstances that exist when it is brought, and the orator must recover if at all, upon the allegations of bis bill when applied to the circumstances then existing. In this view, even if the master’s findings are approved, the orator and oratrix would not be entitled to relief without amendment of the bill. But as such amendment would effect no rights now, unless it influenced the question of costs, the Court of Chancery would probably have allowed it to be made, without terms. Hence, this question is somewhat unimportant. The only contention bearing upon whether the mortgage debt had been paid, when the master heard the case, is whether upon the facts found the defendant is to be charged for the use of the premises from the spring of 1881. The controlling facts on this subject are, that, in the spring of 1881, the orator let the pasture to Persey Bacon; the defendant notified Bacon that he must pay the rent to him, and Bacon thereupon abandoned the pasture; the defendant then or before then turned some stock into the pasture ; and the complainants understood that he had taken possession of it. After that year, no one had possession of the pasture, except the defendant, who turned in oxen, but when, or how much, did not appear. We think these facts show that the defendant, not only assumed control of the pasture in 1881, as against Bacon, but took possession [484] of it himself, and was thereafter accountable for the rents and profits which he ought to have received from the use of it. After what he did in 1881, if he would divest himself of liability for the use of the pasture, he should have notified the orator that he surrendered the possession to him. No claim is made that the amount allowed by the master is too great, if the defendant is liable to account for the use of the premises during those years. This left at the time of the decree a balance due from the defendant which he was decreed to pay to the orator and oratrix. We think the court of chancery properly disposed of the item of $21, paid the defendant by the son of the orator. The decree on the accounting between the parties on the facts found was correct in amount, and in form, if the bill had been formally amended to adapt it to the circumstances as they existed, when it was brought. II. Can the defence prevail, because the deed was given and taken absolute in form, not only to secure the defendant for paying the Miller notes, which were about to be foreclosed, but to cover the property and prevent the creditors from troubling the orator and oratrix ? In other words, can the defendant set up his own fraud, entered into with the complainants, to defeat their other creditors? If he can, then the statute to prevent fraud, in equity even, can be made the means of a fraud; for, in that case, the defendant can receive payment in full for the debt for which the deed was given, and still hold the premises conveyed as security for the payment of that debt. Secs. 1955 and 4155, E. L., both declare that fraudulent and deceitful conveyances of bonds, etc., “shall, as against the person, whose right, debt or duty is so intended to be avoided, his heirs, or assigns b.e utterly void.” These provisions of the statute, have, at common law, and generally, been held to make the contracts good and enforceable between the parties arid only void as to creditors whose right, debt or duty is attempted to be avoided. The opinion in Carpenter v. McClure, 39 Vt. 9, is a full and careful consider [485] ation of this subject. That case holds that a note given for such a purpose between the parties was valid and enforceable at law. In the case at bar the contract between the parties, as found by the master, is a mortgage, and he has further found that the complainants have paid it in full. They are entitled to the promises freed from any claim, on the part of the defendant; for that was the legal effect of the contract, between them. Under the decisions of this court, the deed though absolute in form, could be shown, as between the parties, to be a mortgage. Without objection or exception, the deed in this case was shown to be only a mortgage between the parties. It was valid as such between them though void as to any other creditors of the complainants. It was valid between them as mortgage and will be enforced as such, especially, when a refusal to enforce it as such, under what had been done under it, would make it an operative fraud in the hands of the defendant, upon the orator, or allow him to take advantage of his own fraud upon others, to defraud the orator and oratrix. III. The defendant claims that the decree was erroneous in regard to costs. This court rarely disturbs a decree in chancery solely on the question of costs. Costs in chancery are largely in the discretion of that court, dependent upon the circumstances of each case. We should be slow to reverse a decree upon a question of costs alone. This court has not been furnished with a copy of the defendant’s answer ; but the decree plainly indicates that, in that the defendant claimed to hold the premises for debts which were not secured on them, and that he failed in the defence he undertook, and for that reason was refused costs and the orator allowed costs on the false issues which ho raised in his answer. If this was so, the court properly refused him costs and allowed the orators costs... Decree of the Court of Cháncery is affirmed and cause remanded, with right in the orator to ask leave to amend his bill in the particular indicated on such terms, if any, as the Court of Chancery may impose.