sealed for a simple contract, the first contract 7. G and S, tenants in common of lands, is merged in the last, and the last is a bar to an joined in a perpetual lease of the same to W action upon the first. Bryant v. Gale, 5 Vt. for a certain annual rent, with right of re-entry 416. Mott v. Harrington, 12 Vt. 199. Hall, for non-payment. S afterwards assigned all J., in Langdon v. Paul, 20 Vt. 220. his interest in the lease to A, and afterwards

2. Where there was an unsealed contract in one-half of W's interest in the lease and premwriting for the conveyance of land free of in- ises came to A by conveyances. Rent being cumbrances, and afterwards, in consummation in arrear, the heirs of G, deceased, brought of this contract, a deed of the land was given their bill setting up their right to one-half the and a bond to indemnify against a supposed in- original rent reserved, and praying that it cumbrance ;-Held, that the claim upon the should stand as a charge upon the whole premsimple contract became merged in the higher ises, and for a foreclosure in case of non-paysecurity, and that no action lay thereon. Smith ment. Held, that although the title to an unv. Higbee, 12 Vt. 113. divided half of the premises had become vested 3. The maker of certain negotiable promis- in A, this did not so work a merger of the two sory notes executed a sealed instrument, certify-estates as to extinguish the rent in arrear to A, ing "to all persons" that he had signed the or A's right under the lease to enjoy his moiety notes, and waiving the statute of limitations of the land for the rent in arrear and the rent thereon, and agreeing to pay them to the payee to accrue, that not being for his benefit nor or his order, "the same as though the statute of according to the intent of the parties; that limitations had not run on said notes." In an the orators' rights were not superior to his, and action upon one of the notes by an indorsee; that they could not extend their security over Held, that the instrument was not a bar to the the whole land. Spencer v. Austin, 38 Vt. action; that the plain intent of it was not to 258.

give an independent remedy, but to strengthen 8. A mortgage is not merged in a subseand keep alive the remedy upon the notes; and quent conveyance to the mortgagee of the that any remedy upon it was not co-extensive equity of redemption, if such merger would with that upon the notes, and so was not a mer-operate to the injury of the mortgagee. Marger, but only collateral. Langdon v. Paul, 20 shall v. Wood, 5 Vt. 250. 26 Vt. 715.

Vt. 217.

4. A simple contract debt is not merged in a bond, where the debt is recited in the bond, and it is provided in terms that the payment of the debt shall be a release and discharge of the obligor. Hicks v. Clark, 41 Vt. 183.

For merger of original debt in Judgment, see JUDGMENT; of account in Promissory note, see PROMISSORY NOTE.

II. As To ESTATES.

9. Where a mortgagor conveyed his equity of redemption to the mortgagee in payment of the mortgage debt, by a deed of warranty with the usual covenants ;—Held, in ejectment, that this did not operate as a merger of the mortgage, so as to give priority to an intervening incumbrance by way of an attachment and subsequent levy of execution. Myers v. Brownell, 1 D. Chip. 448. 27 Vt. 495.

10. Where a mortgagor conveys absolutely to the mortgagee in payment of the mortgage, if such conveyance be avoided by the creditors of the mortgagor as fraudulent, it leaves the mortgage in force, as to such creditors. Irish v. Clayes, 10 Vt. 81. 29 Vt. 415.

5. The estates of mortgagor and mortgagee [or of lessor and lessee], when united, will not be treated as merged so as to operate as payment or extinguishment of the debt [or the rent 11. Where a mortgagee has assigned the reserved], unless such was the evident inten- debt and mortgage, and the mortgagor aftertion of the parties; nor will that result follow, wards releases his equity to the mortgagee, no if there exists some beneficial interest that re- merger takes place;-for, by the assignment, quires to be protected, and where it is for the his assignee became mortgagee, and, by the rebenefit of the party to keep the two estates lease, himself became mortgagor. There can separate and distinct. Walker v. Baxter, 26 be no merger, unless the two estates unite in Vt. 710, 715. Spencer v. Austin, 38 Vt. 258, 269. one and the same person, and in the same Myers v. Brownell, D. Chip. 448. Marshall right. Pratt v. Bank of Bennington, 10 Vt. v. Wood, 5 Vt. 250. Slocum v. Catlin, 22 Vt. 137. 293.

6. Where one having an equitable title, 12. Where the defendant paid off a mortwith possession, afterwards took a perpetual gage upon land and took an assignment from lease from the legal owner, it was held that the mortgagee and a conveyance of the equity this should not operate as a merger of the of redemption from the mortgagor, the court equitable title so as to give precedence to an relieved the defendant from the legal conseintermediate incumbrance, but rather as a fur-quences of a merger, and set up the mortgage ther assurance of title, and as taking date from in his behalf, as against a creditor of the mortthe time of the entry. Pope v. Henry, 24 Vt.560. gagor who had levied upon the equity before

record of the defendant's deed. Catlin, 22 Vt. 137. 26 Vt. 715. 31 Vt. 129.

Slocum v. before or at the time of trial. Held, that the 27 Vt. 495. judgment of a court-martial was not avoided by reason of a defective notice of the charges, 13. The orator purchased of G his equity of and of service of process. Brown v. Wadsredemption in lands mortgaged, which equity worth, 15 Vt. 170.

MISTAKE.

was then, as the orator knew, under an attach- 5. But where there was want of jurisdicment by the defendant, the orator agreeing tion of the person, as where an alien, not subwith G to pay the mortgage debt, but nothing|ject to military duty, was amerced by courtbeing said as to keeping the mortgage on foot. martial;-Held, that the proceedings were The deed excepted the mortgage from the cov-void, and the officer liable for serving the exeenants. The orator paid the mortgage debt to cution. Barrett v. Crane, 16 Vt. 246. See the holder, under an arrangement with him that Darling v. Bowen, 10 Vt. 148. the orator should have the security, and the holder accordingly transferred the mortgage notes and mortgage to the orator, without recourse. The defendant, following up his attachment, obtained judgment and levied his execution. In a bill to foreclose the mortgage; 1. When equity will relieve. Chancery -Held, that there was no merger of the mort-will correct a mistake in a conveyance, where gage, and the orator was entitled to a decree the mistake is undeniably proved, and perfect for the amount paid by him upon it. Bullard the conveyance according to the intent of the v. Leach, 27 Vt. 491. parties; and this, whether the mistake is in regard to a statutory or common law requisite ; or whether the parties failed of executing such an instrument as they intended, or mistook in respect to the operation of the instrument. Beardsley v. Knight, 10 Vt. 185.

MILITIA.

1. The act of 1837, "for regulating and 2. Where a mistake in a conveyance is of governing the militia," expressly repealed the so fundamental a character that the minds of militia act of 1818, and no new organization the parties have never, in fact, met; or where under the act of 1837 took place until July, an unconscionable advantage has been gained 1838. Held, that, although the act of 1837 re-by mere mistake or misapprehension, and there pealed the act of 1818, it did not disband the was no gross negligence on the part of the militia organized under the act of 1818, nor plaintiff, either in falling into the error or in break up such organizations; and that for a not sooner claiming redress, and no intervening delinquency at June training, 1838, the party rights have accrued, and the parties may still was punishable, according to the act of 1837, be placed in statu quo, equity will interfere, in and by a court-martial created and organized its discretion, in order to prevent intolerable under that act. Gilman v. Morse, 12 Vt. 544. injustice. (Relief granted in this case, where (Redfield and Bennett, J. J., dissenting.) the orator omitted in the deed to make a reservation of a spring of water.) Brown v. Lamphear, 35 Vt. 252.

2. Able-bodied. Mere physical infirmity does not operate as an exemption from enrollment and military jurisdiction, under a pro- 3. In order for chancery to correct alleged vision requiring the enrollment of every “able- mistakes in written contracts, or deeds, the bodied" citizen; and of the extent of such in- mistake must be either admitted by the defendfirmity, whether visible or not, the enrolling ant, or else be proved by such evidence "as officer must judge in the first instance, leaving admits of no doubt"-"the most conclusive his error to be corrected by a disenrollment, as evidence"-"the most irrefragable evidence." provided in the statute, and not by an action as Redfield, J., in Griswold v. Smith, 10 Vt. 452. for excess of jurisdiction. Darling v. Bowen, Clearland v. Burton, 11 Vt. 138. Goodell v. 10 Vt. 148. Warner v. Stockwell, 9 Vt. 9. 16 Field, 15 Vt. 448. Preston v. Whitcomb, 17 Vt. 254. Vt. 183. Shattuck v. Gay, 45 Vt. 87.

3. Courts-martial. In imposing and re- 4. Instances. The parties owning a farm mitting fines, militia officers act judicially, and in common, which the orator had a right to their final decisions are conclusive. Mower v. flow by means of his mill dam, made partition Allen, 1 D. Chip. 381. Warner v. Stockwell. by mutual quit-claim deeds. Held, that the 4. The adjudication of summary and special legal effect was to release the orator's right of jurisdictions-as, of a court martial, in impos- flowage; but, such not being the effect intended, ing a fine-having jurisdiction both of the sub- the defendant was restrained in chancery from ject matter and of the person of the party, can- setting up the deed as such release. Mower v. not be voided by any circumstantial irregular- Hutchinson, 9 Vt. 242. 22 Vt. 268.

ity in the detail of the proceedings, either 5. The defendant, being the owner of the

one-half of a saw-mill, contracted to sell the done and leave the contract operative as to same to the orator for the price of a full title to what they did intend. Poland, C. J., in Fletcher such half, and to give a warranty deed thereof. v. Bennett, 36 Vt. 665; citing Proctor v. Thrall, The deed given was of the defendant's "right, 22 Vt. 262. Fletcher v. Jackson, 23 Vt. 581. title and interest" in the mill, and contained no Barnes v. Lapham, 28 Vt. 307. covenant except to "warrant and defend the 12. If the different operation of the conaforesaid premises." The premises were then tract, beyond what was intended, is merely a in fact subject to a mortgage. Held, that the legal effect or result of what the parties did contract was for a deed including covenants of intend, so that relief cannot be given except by seisin and against incumbrances, and it being annulling the very contract understandingly found that the deed was not according to the and intentionally entered into, chancery will contract, the defendant was enjoined from not interfere. Proctor v. Thrall. suit upon a note given for part of the purchase! 13. The owner of mortgaged premises, price, until he had removed such incumbrance, being about to sell them, procured the first the same as if such covenants had been inserted mortgagee to execute to the purchaser a bond, in the deed. Bowen v. Thrall, 28 Vt. 382. conditioned that the seller should save him

6. Where the parties to a contract of sale of harmless from any incumbrance upon the land. land were under a mutual mistake as to the Held, that the effect was to release the land grantor's title, so that no title was conveyed, from that incumbrance, not only as to the purthe purchaser was relieved in equity. Hadlock chaser, but as to all intermediate owners and v. Williams, 10 Vt. 570. 31 Vt. 383. incumbrances; and that although this latter 7. A bond given to three jointly, without consequence was not intended by the parties, naming assignees, &c., was allowed in chancery yet as it was the legal consequence of what to be reformed, so as to stand for the protec- they did intend, equity could not relieve the tion and benefit of a business and new parties mortgagee. Ib. becoming interested therein. wright, 24 Vt. 97.

Smith v. Wain

8. The official bond of a constable, imperfect for want of sealing, was treated, as to him and his sureties, as sealed, where the defendants, in their answers to a bill by the town, admitted that it was their intention to have sealed it. Rutland v. Paige, 24 Vt. 181.

14. Mistake or misjudgment of counsel, is no ground for relief in equity against a judgment at law. Burton v. Wiley, 26 Vt. 430.

15. Less still, the mistake of the court. Pettes v. Bank of Whitehall, 17 Vt. 435.

16. Where a party has committed a tort in consequence of a mistake of law, though he acted under the advice of legal counsel in so 9. The orator, having a just claim against doing, chancery cannot relieve him from the the estate of a decedent, presented it to the legal consequences of his tortious act, or omiscommissioners for allowance. No defense or sion ;-as, where a sheriff neglected to commit objection was made to the allowance, and the a debtor upon execution, upon the erroneous orator had reason to believe, and did believe, belief, and the advice of counsel, that the exethat the claim was acted upon and allowed, cution was void. Ib.

and did not learn the contrary until after the 17. Surprise. Surprise, not accompanied statute time for opening the commission had ex- with fraud and circumvention, is not ground pired. The commissioners, through mistake for relief in equity. McDaniels v. Bank of Rutor forgetfulness, had omitted to embrace the land, 29 Vt. 230.

claim in their report, as presented to or acted 18. Ignorance. Nor, is ignorance of facts upon by them. Held, that it was within the merely, where actual knowledge could have jurisdiction of the court of equity, to afford been obtained by the exercise of due diligence relief against the consequences of such accident and inquiry. Ib. and mistake. Dickey v. Corliss, 41 Vt. 127.

19. Nor, is mistake of the law, except in pe

10. A party having equitable rights in culiar circumstances involving other elements, premises, different from what appeared on the―as, ignorance of title, imposition, misrepresenface of the deeds, consented to the appointment|tation, undue influence, misplaced confidence, of commissioners on the petition of his adver- and surprise. Ib.

sary to make partition, mistakenly supposing 20. Nor, although the party in such case that his equitable rights would be available to acted upon the advice of counsel. Ib. Pettes him before the commissioners. Held, in chan- v. Bank of Whitehall, 17 Vt. 435. cery, that this was no waiver of his right; and no bar, there being no judgment. Piper v. Farr, 47 Vt. 721.

(

21. Relief against judgment. In order

to obtain a new trial of a suit at law by bill in equity, the orator must show that he failed of 11. Where relief must be refused. btaining redress in the suit at law by the fraud Where the contracts of parties have produced of the opposite party, or through inevitable acresults not anticipated, they have never been cident, or mistake, without any default, either relieved from such results, unless that could be of himself, his counsel, or agents. Burton v.

Wiley, 26 Vt. 430.

Essex v. Berry, 2 Vt. 161. |sentations as to the title upon making the assignFletcher v. Warren, 18 Vt. 45. Warner v. ment. Blanchard v. Stone, 15 Vt. 271. Conant, 24 Vt. 351. Emerson v. Udall, 13 Vt. 27. The orator claimed relief against the de477. Pettes v. Bank of Whitehall, 17 Vt. 435. fendant's claim, at law, for an annuity agreed Briggs v. Shaw, 15 Vt. 78. to be paid upon the purchase of the defendant's 22. That a judgment at law may have interest in an estate, conveyed by quit-claim, on worked injustice is not, of itself, enough to au- the ground of a lien of the administrator for thorize a court of equity to relieve against it. payment of debts and expenses larger than was It is only upon collateral grounds, not directly supposed. The court not finding any guaranty, passed upon by the court of law, that a court of fraud, or material mutual mistake, the bill was equity can proceed in such cases; and then it dismissed. Newton v. Bennett, 38 Vt. 131. acts upon the conscience of the party in fault, 28. One, by mistake of description in his and not upon the court of law. It is therefore deed, conveyed to the defendant more land than usual to allege and show, that the party seeking was intended, and afterwards devised "all his relief had a just defense, either legal or equit- real estate" to his wife, and this descended to able, of which, through the fraud or wrongful their son, who, without consideration, quitact of his opponent, he was unable to avail him- claimed to the orator the land mistakenly conself in time. Mere accident or mistake on his veyed, but with notice that he asserted no claim own part is rather to be accounted his misfor- thereto; and neither the devisee nor heir ever tune, than imputed as a wrong to the other asserted or claimed any right as against the party. Fletcher v. Warren. legal title conveyed by the deed of the testator.

23. Chancery refused relief against a judg- Held, that the orator had no standing for assertment rendered on default, where the non-ap- ing a claim that the deed be reformed. St. pearance arose from the accident that the Johnsbury v. Bagley, 48 Vt. 75.

party's attorney did not seasonably receive a letter requesting his appearance ;--because (1), the accident might have been prevented by common prudence; (2), substantial justice had been done; (3), the relief prayed went only in reduction of damages; (4), the sum in controversy was small. Essex v. Berry, 2 Vt. 161.

24. Chancery will not relieve against a judgment rendered against one as trustee, on the ground that through forgetfulness or neglect of himself, or his agent, he failed to attend the court, even though it appear that he would have been discharged upon disclosure made, and though there be no redress at law, where no fraud is imputable to the party obtaining the judgment. Warner v. Conant, 24 Vt. 351. 46 Vt. 27.

25. Lapse of time. Chancery will not reform a contract, or set aside an award or proceeding, where the party affected has omitted for a long time to make objection to it. Barker v. Belknap, 27 Vt. 700.

26. Other instances.

The defendant,

1. Characteristics in general.

before the equity of redemption is foreclosed, to be defeated by the payment of the debt. Briggs v. Fish, 2 D. Chip. 100.

having a contract and covenant from D to convey to him title to certain land upon certain conditions of payment, sold and assigned the 1. Pledge for a debt. A mortgage is same to the orators. They paid D the sums nothing else than a pledge of real estate as secufalling due upon the contract, but ascertaining rity for the payment of the mortgage debt. It that the title was not in D, and supposing it is an accident of the debt, and liable at all times, was in E, they obtained a conveyance from E, and gave up to D his contract. The title, in fact, was in neither, but was in the United States. Held, that the orators, by giving up to 2. The lien of a mortgage lasts as long as D his contract and covenant and taking a new the debt, and a change of securities is no dissecurity, had put it out of their power to charge of the mortgage, either as to the mortrescind their contract with the defendant; and gagor or subsequent incumbrancers, unless that that they had no remedy in chancery against was the intention of the parties. Seymour v. him, although he might have made false repre- Darrow, 31 Vt. 122. Dana v. Binney, 7 Vt.

493.

Mc Donald v. McDonald, 16 Vt. 630. orators were entitled to a foreclosure; as to a Dunshee v. Parmelee, 19.Vt. 172. moiety, against both tenants and their grantee. Frothingham v. Shepard, 1 Aik. 65.

3. Or, unless securities of a lower grade are merged in those of a higher one-as, a specialty 10. One mortgaged white acre to secure the for a simple contract—and then probably equity payment of notes on a day certain, and also would relieve from the legal consequence of black acre conditioned for the payment of the the merger. Redfield, C. J., in Seymour v. same notes, or, in case of failure, to surrender Darrow, 31 Vt. 129, citing Slocum v. Catlin, white acre without suit or trouble. The notes 22 Vt. 137. were not paid, and the mortgagor abandoned 4. Payment. A executed to B and C a white acre, without formal surrender, and mortgage, conditioned to become void if he after ten months the mortgagee took possesshould pay a note which they had signed with sion, and the mortgagor conveyed black acre to him as surety. Afterwards he conveyed to S. On a bill against the mortgagor and S to B and D the premises subject to the incum- foreclose as to both parcels, it was decreed, that brance, which they were to pay and discharge. the defendants might redeem black acre by payB afterwards paid the note on which he and Cing the costs and interest on the orator's debt were sureties. Held, that the mortgage was discharged and could not be set up by B and C. Harvey v. Hurlburt, 3 Vt. 561.

5. Where a second mortgagee has purchased in the equity of redemption and has paid off the first mortgage, he cannot maintain an action upon the first mortgage notes against the original debtor, or his sureties. Viles v. Moulton, 11 Vt. 470. Converse v. Cook, 8 Vt. 164.

while he was out of possession of white acre, and by surrendering all claim to white acre ; but, in case of failure, that they be foreclosed as to both parcels, for the whole mortgage debt. Hunt v. Tyler, 2 Aik. 233.

11. Where a mortgage is taken from one of two joint debtors, as a security for the payment of a ratable proportion of the debt, it cannot be enforced beyond the purpose intended 6. A second mortgagee, who had acquired by it, though the other part remains unpaid. the equity of redemption and sold the premises Newell v. Hurlburt, 2 Vt. 351. 3 Vt. 277. for a sum larger than the first mortgage, pur- 12. A party conveying land in consideration chased one of the notes secured by the first of an agreement to support, secured by mortmortgage, which note had been indorsed by gage, was quieted in his title by decree, under the first mortgagee, and sued him thereon as the circumstances of the case, the mortgagor indorser. Held, that such purchase should be having failed to perform his contract. Devertreated as payment and satisfaction of the note. eaux v. Cooper, 11 Vt. 103. Frizzle v. Dearth, Smith v. Day, 23 Vt. 656. 28 Vt. 787.

7. In an action on a mortgage bond executed 13. The defendant assigned and indorsed to in the State of New York ;-Held, that the the orator a negotiable promissory note, and purchase of the mortgaged premises at the executed to him a mortgage conditioned that mortgage sale by the mortgagee, the same the defendant should "well and truly pay or being authorized by the law of New York, cause to be paid" said note. Held, on a petioperated only as payment pro tanto, although tion to foreclose the mortgage, that it was not he afterwards sold the premises at a greater discharged by the mere failure of the orator to price, no fraud being shown. Sabin v. Stick-charge the defendant as indorser of the note. ney, 9 Vt. 155. Mitchell v. Clark, 35 Vt. 104.

8. Right of redemption inseparable. If 14. Equitable set-off. Equity will not a transaction between parties is in fact a mort- permit a grantor of lands to recover the entire gage, the right of redemption attaches as an purchase money and leave an unpaid incuminseparable incident, created by law, which brance upon the land, which he is under oblicannot be waived by agreement made at the gation to discharge. The purchaser has the time of the execution of the deed of convey- right, in equity, to retain of the purchase ance, nor upon any future contingency what- money sufficient to secure him against such inever. Wing v. Cooper, 37 Vt. 169, 181. Catlin cumbrance, particularly where the grantor is v. Chittenden, Brayt. 163, Baxter v. Willey, 9 insolvent, and no adequate remedy can be had Vt. 276. Wright v. Bates, 13 Vt. 341. Davis on his covenants. Bowen v. Thrall, 28 Vt. v. Hemenway, 27 Vt. 589. 382.

9. Particular cases. A tenant in com- 15. In negotiating the sale of a farm at a mon of land mortgaged it to his co-tenant, his gross price, the vendor represented that the late partner, to indemnify him against the part- meadow part contained not less than 80 acres, nership debts, of which a debt due the orators whereas in fact the meadow contained but 60 was one, and then mortgaged the same land to acres. He made these representations with the orators to secure their debt. Afterwards professed knowledge on the subject, knowing both tenants sold and conveyed the land to a that the vendee relied upon them as true; and stranger. Held, on a bill to foreclose, that the the vendee had a right, under the circumstances,