Ford v. Hersey

Watson, C. J. It is said that the decree rendered below gives no consideration to the matters sought to be brought into [410] the case by the motion of defendant Hersey for leave to file a cross bill, and that in the circumstances of the, case the denial of the motion was an abuse of discretion, and consequently an error which this Court will correct. The principle here invoked is well understood, but to make it applicable a clear ease of such abuse must be made to appear. Our attention is called to the fact that it appears from the transcript that when the consideration or inducement for the deeds of April 6, 1904, was under consideration and Hersey was testifying concerning the matter, he was asked whether there was any other consideration or inducement for making those deeds. Whereupon counsel for plaintiffs objected on the ground that it went to those prior conveyances, which could not be done in the absence of a cross bill; and that it was not material to any issue in the case. The answer, which was in the negative, was received and exception saved by plaintiffs. The direct examination continued and, so far as it appears, the course of it was not changed by reason of this objection- and exception. The master’s report shows that the case was heard on the evidence in December, 1915, closing on the 29th; that after the taking of testimony was thus concluded, a further hearing was granted by the master, at Hersey’s request, for the purpose of receiving more evidence, and such hearing was had on the 27th day of July, 1916. The master’s report was filed on August 2, 1917, and exceptions thereto were filed by all the defendants on the 16th day of the same month. The motion by Hersey for leave to file the so-called cross bill was in fact a motion for leave to file a certain paper then presented, consisting of an amendment to his answer by way of allegations of new matter, and a cross bill praying for specific and for general relief, all of great length and sworn to by him on November 9, 1917. Consequently this motion was not presented to the chancellor at the earliest until the day last named, which was nearly two years after the aforementioned objection, based upon the want of a cross bill, was made. The additional allegations, except as to change of counsel and prejudice of the master presently to be noticed, show nothing not fully known to Hersey when he made answer to the bill. It is alleged therein, however, that he told all such additional facts to his counsel before the latter drew the answer, but that they were not included, and many of them were not shown in evidence. It is a part of the new allegations that during the progress of the hearing before the master, Hersey be [411] came dissatisfied with the handling of his case, dismissed his counsel,' and procured the services of new counsel; that the failure to bring out such additional facts and the change of counsel created prejudice in the master’s mind against Hersey, by reason whereof the master, did not give proper consideration to the evidence adduced by him, and found against the evidence in the case. Just when the change of counsel took place does not appear; but it was prior to the hearing had before the master in July, 1916. On that occasion Hersey was represented by the new counsel. So if there was neglect of duty by his former solicitors in the respect named, the hearing of the case on the merits was concluded by the new solicitor who thereafter had charge of the matter without applying for leave to take steps remedying the effect of the alleged neglect of duty, until at least a year and four months after his employment and some three months after the report and exceptions thereto were filed, and immediately preceding the rendition of the decree. The record discloses no attempt to explain this delay in making the application. The full scope and purpose of the motion are realized when we notice that one of the special prayers of the proposed cross bill is that on account of the prejudice and bias of the master, a retrial may be had of the facts and issues involved in the case, and that such retrial may be had before the chancellor. Nothing is shown of record reasonably subjecting the master to criticism in the respect named. So far as appears he performed his duties fairly, fearlessly, honestly, and well. By the third and fourth paragraphs of the decree, the chancellor very properly disposed of the motion by denying it, and there was no abuse of discretion in so doing. In his direct examination in defence, Hersey testified that at the time he gave the two deeds to plaintiff Mattie H. Ford, there were several other matters which were embarrassing him. In cross-examination he testified that the property in question in the town of Barre was deeded to him by one Payne. He was then asked whether Payne embarrassed him and answered, "That was all settled.”. Being asked if Payne was one of the gentlemen who was embarrassing him, he answered, “Not in 1905. Q. About that time? Ans. Five years before that. Q. When did you get settled up with Payne ? Ans. When that deed was given.” Thereupon his counsel objected on the ground of im [412] materiality because of remoteness, and an exception was noted. The next question related to the same subject-matter and an exception was saved, but the question was not answered He was asked whether the Payne ease was tried before Mr. Senter as master, and answered in the affirmative. Objection was then made and exception noted. He was further asked whether he had had some experience in making erasures in deeds prior to 1904. Objection was made to the question, but no exception was saved to the ruling. It is argued that since one much contested question in the suit at bar was whether Hersey made erasures in the two deeds in controversy, as alleged in the bill, the foregoing evidence relating to the Payne matter was pressed for the purpose of creating prejudice in the mind of the master against him by insinuating that he made erasures in a matter entirely immaterial here, and the reception of .the evidence in the circumstances was error. The question asked but not answered could not have resulted in prejudice to the exceptant. This leaves the two exceptions taken after the questions had been answered. The record contains nothing showing that either of these questions was answered before an objection could have been interposed, and it will not be presumed. The answers given were responsive to the questions, and the exceptions were too late to be availing. State v. Ward, 61 Vt. 153, 17 Atl. 483; State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403; State v. Powers, 72 Vt. 168, 47 Atl. 830. Hersey was asked in direct examination what wages the plaintiff Harry L. Ford received from his different employers while he was living at the witness’s home. The master ruled, excluding evidence of this character pointing to the time prior to 1904, when the deeds were given by the latter to Mrs. Ford, and an exception was noted. An offer was made to show the actual amount of money paid in to the witness by Harry L. while he lived in the family there with the witness, the amount per week, and the different amounts from the time he went there and during the time he lived there. This offer was excluded and exception saved. The offer did not include a statement of the amount which defendant purposed to show was paid'in either as a whole or at the different times. The object of the evidence which defendant was trying to introduce was to show the sum total and the different sums so paid in, not the fact of there being money paid in by Harry L. This being so, we cannot say that any [413] harm resulted to defendants from the ruling, and the exception is without force. Defendants Smith took exceptions to the report, and an appeal from the decree; but in argument they only ask that the payment to them by the plaintiffs of the $1,100 and interest mentioned in the decree, be made secure by the terms of the decree. In this respect the decree, as rendered, is based upon the principle that he who seeks equity must do equity. Whether this rule, as generally applied, extends far enough to affect the matters in which defendants Smith are here particularly interested, we need not inquire; for not only are the plaintiffs satisfied with its application as made by the chancellor, but consent that the provisions in this respect be made more specific, as desired by the Smiths, if they can be and the decree in its general provisions remains unchanged. By the decree, the deed therein specified as given to them by defendant Hersey, is "adjudged to be null and void and of no effect and is ordered to be expunged from the land records, * * * provided and on condition that the plaintiffs pay to said defendants” Smith the sum specified, within a time limited, with interest thereon, etc. That such payment may-be secure as desired by the Smiths, and as consented to by the plaintiffs, this part of the decree should be so amended as to have an alternative provision to the effect that if the said sum with interest thereon be not paid as there ordered, within the new time limited-therefor, relief to the plaintiffs as against the said deed from Hersey to defendants Smith is denied, and the bill dismissed as to the latter with their costs. When thus amended, the decree in this regard will conform in substance to decrees as sometimes rendered, when based upon the equitable principle mentioned, and be sufficiently protective of the rights' of the parties. The decree is altered to conform to the vietvs above expressed, and, being so altered, it is affirmed and cause remanded. Let a new time be fixed within which the payment shall be made by the plaintiffs to defendants Smith.