Rochester vs. Whitehouse

Rochester vs. Whitehouse.

Where, under an agreement by a creditor to accept from his debtor, in payment of the debt, property at an appraised value, appraisers are appointed, their authority may be revoked as in the case of a submission to arbitration, and such revocation may be made orally, though the appointment was in writing but not under seal.

Where in such case the creditor is a town, the selectmen may make such revocation for the town, although the debtor’s proposition to pay his debt in that mode was accepted by vote of the town, and the selectmen were instructed to carry the vote into effect, and appointed appraisers accordingly.

It is not a good plea to a writ of entry by a mortgagee against a mortgager, that the mortgagee had agreed, puis darrein continuance, to accept, in payment of the mortgage debt, property of the mortgager at a value to be fixed by appraisement, and that the property was appraised accordingly at a value greater than the amount of the debt, and that the mortgager had tendered a conveyance thereof to the mortgagee, which was refused by him.

Where to such a plea there was a replication of a revocation of the authority of the appraisers, and a rejoinder traversing such revocation, and issue joined thereon, and a verdict for the plaintiff — Held, that the issue was immaterial; but, as the plea itself admitted the cause of action, that there must be judgment for the plaintiff.

Writ or Entry, for certain land and mills, situate in said Rochester, commenced January 2, 1843, in which the plaintiffs counted on a seizin in fee and in mortgage. The defendant pleaded, in substance, that since the last continuance of the action, the town and he had agreed that the mortgage debt should be paid in the following manner, viz: in his property to be by him shown to the town and appraised, and immediate possession given, and the same taken by the town at the appraisal, in payment of the debt; that he did show such property, to wit, an equity of redemption in certain real estate, which was appraised according to agreement, at an amount larger than the mortgage debt, and a conveyance thereof by him tendered to the town, and by the town refused.

The plaintiffs, after protesting, &c., replied that before the appraisal, and before notice of it, the town revoked the authority of the appraisers. The defendant’s rejoinder traversed such revocation, and issue was joined thereon.

The defendant showed that at meetings of the town, regularly holden, on the loth and 81st days of March, 1843, upon the 9th article in the warrant for said meetings, in the following words, viz: ££ To see what method the town will take in relation to the collection of the surplus revenue,” the following proceedings wore had, viz: “ Voted, that the agent, having in charge the surplus revenue, be instructed to ascertain as near as may be, what the demands could be sold for, and report at the adjourned meeting.” The agent reported “ that he presumed he could not find a purchaser unless it was the original payor, and that there is three years interest due the town. Original claim, {$8000.” The defendant then made a proposition to the town, to pay the note the town held against him in property at the appraisal of three disinterested appraisers and the town thereupon passed certain votes accepting the proposition, which are more particularly set forth in an agreement entered into between the selectmen and the defendant, April 10, 1843, of which the following is a copy, viz:

“ To Andrew E. Eemeritt, of Lee, and, Elijah Austin, of Madlmry. Whereas the legal voters in the town of Rochester, at a town-meeting, holden on the 31st day of March last past, voted to accept the following proposition, made to said town in relation to the payment and discharge of a note due said town from N. V. Whitehouse, to wit: £ N. Y. Whitehouse proposes to the town of Rochester to shew them property sufficient to pay the note which said town holds against him, at the appraisal of three disinterested appraisers” and also passed the following votes in relation to the payment of said note, viz: £ Voted, to have three appraisers chosen; one by the selectmen, one by N. Y. Whitehouse, and a third agreed on by the two appraisers thus chosen; who shall appraise property to be shewn them by said Whitehouse sufficient to pay said Whitehouse’s note to the town, and said Whitehouse to give the town immediate possession of said property. If said Whitehouse does not shew said appraisers property sufficient in their estimation to pay said note, then the appraisers shall appraise all the property shewn them, and the town shall have possession of the same immediately, and the said Whitehouse shall be holden for the deficiency.

*4704 2d. Voted, that the selectmen be instructed to carry the above vote into effect, and that the said property be appraised within thirty days.

“ Now, in pursuance of the proposition and votes aforesaid, we, the undersigned, selectmen of the town of Rochester, and the said N. Y. Whitehouse, have chosen you, the said Andrew E. Remeritt and Elijah Austin, to be appraisers according to said proposition and votes; and we mutually request you to appoint a third appraiser, and with him go on and appraise such property as the said'Whitehouse shall shew you, and make a written report of your said appraisal, and furnish each party with a copy of the same within thirty days from the said 31st day of March last past.

And we, the undersigned selectmen, and N. Y. WTfitehouse, do farther request you, and the third appraiser whom you may appoint, as soon as may be convenient, to notify us, the said selectmen and N. Y. Whitehouse, of the time when you will attend to said appraisal.” (Signed by the selectmen of Rochester, and by the defendant.)

“ Rochester, April 10th, 1843.”

The appraisers thus chosen appointed Winthrop Smith to be the third appraiser.

The plaintiffs then proved that on the second day of the meeting of the appraisers and the defendant and the selectmen of Rochester, W. A. Maratón, Esq., attended as counsel at the request of said selectmen, and on their behalf gave notice to the appraisers “ that the town did not feel like being a party to an appraisal of such land as was' offered by the defendant; that they would recognize no seeming authority, but revoked it and withdrew, and would have nothing more to do with the appraisal of the landthat Whitehouse was present; and that it was admitted that the property was incumbered by mortgage.

To show how far the parties had proceeded before the above notice was given, the defendant called one of the appraisers, who testified that after receiving the written agreement, or commission, he and the other appraisers met the parties on the 21st of April, 1848; that the defendant inquired of the selectmen what property they expected him to turn out to them,.and they replied, “ the mortgaged property;” to which he replied ho was willing, and showed the property which-was subsequently appraised, and which was the same property mortgaged by him to the town, and that the same was examined by the appraisers; that some time in the course of the day, and as he thought after the property had been exhibited and examined, the selectmen made some objections to taking it, saying that the mortgages were to be cleared, and asked the postponement of the business until the next day, to obtain counsel, and his impression was, to examine the records; that after the selectmen the next day gave notice that they revoked, Whifcehouse insisted on the appraisers going on; that they appraised the property, subject to certain mortgages to Woodman and the Savings Bank.

It was agreed that the §3000 note of Whitohouse, mentioned in the plea, was given for a part of the surplus revenue of the town, borrowed by him.

A verdict was taken, by consent, in favor of the plaintiffs, upon the issue joined by the parties, which is to be set aside and a verdict entered upon said issue in favor of the defendant, if in the opinion of the court such a verdict should have been rendered by the jury upon the foregoing evidence. And such judgment to be rendered by the court upon the whole record as the law may require.

C. W. Woodman, (with whom were James Bell, R. Kimball, and Christie,) for the defendant,

contended that the town had no right to revoke; that if the town had the right, the selectmen had no authority to exercise that right; that this was the substitution of one contract for another, and not a submission to arbitration; 2 Bouvier’s Law Dict. 368, Revocation; 2 Keble 79; and that as the submission was in writing, it could not be revoked orally.

I. Bartlett, (with whom were Hale and Wiggins,) for the plaintiffs.

The plea furnishes no answer to the action.

Towns have no authority to make such an agreement as the one set up. • It amounts to a purchase of real estate.

An equity of redemption was not “ property,” within the meaning of the votes of the town. Whitehouse could not give such an immediate possession of an equity as was stipulated for.

A submission not under seal may be revoked by parol. Watson on Awards 9; Vynior’s Case, 8 Coke 162; 1 Conn. 335; 16 Johns. 205, Allen vs. Watson.