Davis v. Hemenway

The opinion of the court was delivered by

Redfield, Ch. J.

We think the defendant may fairly be regarded as having the same equity in these premises under the contract B as under the contract A. The only objection urged *593 against this view is, that he had assigned his equitable estate, whatever it was, under the first contract, and that had not been reconveyed to him. But this assignment is merely conditional and, by express terms, to become void upon any failure to keep and perform all the conditions on the part of the assignees. In these they did fail, and surrendered the possession, and the plaintiff’s grantor renewed the contract with defendant. We think under this state of facts, all the parties in interest in the matter consenting to treat this assignment, as expiring by its own limitation, it is not now for the plaintiff, who took with full notice of the title of his grantor, and of defendant’s equities, to set up any possible equity, which may exist, in these assignees, to defeat defendant’s equity, which seems, on all grounds, to be the paramount equity against the plaintiff, and, probably the only one which can be asserted against the plaintiff. Whether this equity is strictly that of a mortgagor is not very clear upon the case as drawn up. The case finds expressly that the county court so regarded it and so held it, and gave judgment for the defendant upon that ground. And, as all the facts in the case are not said to be stated, but only certain facts, and among them that the defendant had a mortgage interest in the premises, by contract A, it is impossible for us to say that the court was not fairly justified in so holding the defendant’s interest. If the real intention of the parties was to secure a deb and nothing more, and the contract was put in the form it was, to cut off the debtor’s equity of redemption, equity will still regard it as a mortgage. Hyndman v. Hyndman, 19 Vt. R. 9.

This is altogether matter of fact, and, unless all the testimony is detailed, and we could thus see that it had no tendency to show a mortgage, we could not revise this finding of the county court on an issue of fact, as we could the finding of the court of chancery, upon such a question, when the matter comes into this court upon appeal.

II. In regard to the extent of this remedy, it is obvious to us that neither the fifteenth section, which expressly limits the remedy to a written lease and a demand in writing, after the determination of the lease, for the surrender of the premises, or the twenty-third or thirtyeth section which only extend to the lessee of any lands ”— “ or the person holding under such lessee ” could have any just *594 application to the case of an equitable mortgagor, and, probably,, not even to the case of a purchaser of the land in possession. For the former is, in equity, the owner of the land and the interest of the mortgagee is a mere chattel. And a purchaser has, even after a failure to perform his contract strictly in time, still an equity. And, although, the mortgagor, after the law day is passed, and a purchaser, after failure to perform, hold by a tenure, which has been denominated a kind of tenancy by sufferance, still they are neither of them in any sense lessees. And, having taken a writing like the present, agreeing to pay rent, if it is really but interest upon a debt or the purchase money, will not make them lessees. And accepting this interest after the three years named in the-writing expired, if it be really nothing more than interest, is a recognition of defendant’s equity, after the expiration of the time limited, and, in equity, a renewal of the contract. And these questions are matters of fact, to be determined by the triers of the fact, by way of inference from the testimony, where that is not explicit, and not revisible here.

The sections above alluded to' are the only ones relied upon in the argument as sustaining the present proceeding, and the only ones giving such a proceeding, I think, before one justice, which this was.

And we are satisfied it was not the purpose of the statute to give this summary remedy against one in possession of lands, unless all title and right in him, both legal and equitable, had ceased, or indeed unless he were a technical lessee and nothing more, his term having expired.

Whether the original provisions of this act against forcible entry and detainer afford any redress in such case is not now before us. That is a proceeding before one justice and a judge of the county court, wholly unlike the present.

Judgment affirmed.