tionee's property in the state, as if the petition had been served on him in the state. G. L. 2276.

CHITTENDEN COUNTY TRUST CO. v.
HURD et al. (No. 114.)

(Supreme Court of Vermont. Chittenden.
Jan. 13, 1919.)

ENCES.

Where a case stands on agreed facts, its determination must be based on such facts, and no inference can be drawn by the court therefrom.

2. HOMESTEAD 57(1)—EXISTENCE-BURDEN OF PROOF.

The burden is on the holder of a second mortgage, in the execution and acknowledgment of which both the mortgagor and his wife joined, to show that the mortgagor has a homestead right in the land as against a first mortjoin to the extent of the indebtedness which was gage, in which the mortgagor's wife did not not used in purchasing the premises.

Occu

The petitionee relies upon Smith v. Smith, 74 Vt. 20, 51 Atl. 1060, 93 Am. St. Rep. 882. The decision there, when applied, as it must be, to the facts of that case, is in harmony 1. TRIAL 368-ON AGREED FACTS—INFERwith our present holding; but, treated as abstract propositions, some of the statements of the opinion are liable to mislead. That was a petition for divorce. The petitioner sought to have decreed to her a fund in the hands of an executor who was administering an estate in New Hampshire. The fund represented the petitionee's distributive share of such estate, which the New Hampshire court had ordered paid to him on demand, but upon a certain condition not complied with. The only means taken to subject the fund to the control of the court was an injunction order restraining the executor from paying the money over to the petitionee. The execu tor had leave to appear in his own interest and claimed that the fund was not in this state, but was subject to the orders of the probate court in New Hampshire; that the fund was not seized or attached, and so was not brought before the court; and that, in the absence of personal service on the peti tionee, the power of the court over his prop erty, even though it be in the state, was con fined to such as was seized and brought be fore the court by the proceedings. It should be observed in this connection that the only notice to the petitionee was by publication, and it appeared that his whereabouts were unknown. On these facts the court below held that it could not order the executor to pay the fund to the petitioner as alimony, and this court affirmed the judgment. But a fact not appearing in the reported case is significant. The county court found no difficulty in decreeing to the petitioner as alimony certain real estate located in this state in which the petitionee had an interest as an heir at law, thus asserting its authority to dispose of the petitionee's property in proper circumstances without acquiring jurisdiction of his person.

We are not now concerned with the question of procedure. Nor is it necessary to consider whether the petitioner can secure full relief on this petition unamended. If a shortage of allegations should be discovered, resort can be had to the practice act to cure the defects; and if the ordinary procedure, including that authorized in G. L. 3607, should be found inadequate, the chancery powers conferred by G. L. 3577 will doubtless afford the means of bringing the property in question into the control of the court. It is not intended to intimate whether or not this can be done by the injunction already issued in these proceedings.

Judgment reversed, and cause remanded.

3. HOMESTEAD 57(3) — EVIDENCE
PANCY SHORTLY AFTER PURCHASE.
Where one purchased land, and executed
and delivered a mortgage for indebtedness other
of a deed to him, it cannot be said that the
than the price concurrently with the delivery
land constituted a homestead at the time the
mortgage was executed so as to require joinder
therein by the purchaser's wife, where there
was no evidence that the land was purchased
with the intention of making it a homestead;
the only evidence on the issue being that the
"shortly after" delivery of the deed and mort-
purchaser moved onto the land with his family
gage.

4. MORTGAGES

491-FORECLOSURE-DECREE

-SCOPE OF RELIEF OTHER INCUMBRANCES. A cross-bill by a subsequent mortgagee was erroneously dismissed on determination in favor of the plaintiff on the issue of the priority of his mortgage, since cross-complainant was entitled to foreclose as to all persons except plaintiff.

Appeal in Chancery, Chittenden County; Stanley C. Wilson, Chancellor.

Suit by the Chittenden County Trust Company against Lyman C. Hurd, Jr., and others.

From a decree of foreclosure in favor of plaintiff, defendant Lyman C. Hurd, Sr., appealed.

Decree, as altered, affirmed, and cause remanded, with directions.

The agreed facts show that defendant Lyman C. Hurd, Jr., purchased the land and premises sought to be foreclosed of one Mary B. Mayo, by deed dated July 29, 1913, but the purchase was not consummated by delivery of the deed until July 31, 1913, at which time the plaintiff's mortgage was executed and delivered. The deed and mortgage were delivered concurrently. Shortly after the delivery of the deed and mortgage, Lyman C. Hurd, Jr., took possession of the premises, moved his family therein, and occupied the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(106 A.)

same as a homestead until he and his wife | foreclosure as against all the parties exceptconveyed them to defendant Carrie A. Win- ing the plaintiff, subject to the rights before ter on July 23, 1915. Mary B. Mayo was in cared for by the decretal order. Lyman C. possession of the premises until Hurd, Jr., Hurd, Sr., appealed. took possession.

On December 18, 1913, Lyman C. Hurd, Jr., and his wife Elizabeth W. Hurd, executed and delivered to Lyman C. Hurd, Sr., a mort-payment of his indebtedness which is not a gage of the same premises, conditioned for the payment to the mortgagee by the mortgagors of their promissory note of even date for $1,500. This note is due and unpaid. In this mortgage the premises are warranted free and clear of incumbrance, except the mortgage to the plaintiff.

way of a decree of foreclosure against all the parties except the plaintiff, subject to the rights there mentioned. For this purpose the cross-bill should be retained in the case, dismissing it as to the plaintiff only, and the decree is altered accordingly.

Decree, as altered, is affirmed, and cause remanded. Let new times of redemption be fixed.

WOOD v. JAMES. (No. 110.)
(Supreme Court of Vermont. St. Johnsbury.
Dec. 18, 1918.)

1. VENDOR AND PURCHASER 85-RESCIS-
SION OF CONTRACT-CONSIDERATION.
Where parties by mutual consent rescind
land contract, the release of one is a consider-
ation for the release of the other.

2. EVIDENCE 448-TERMS OF CONTRACT-
UNAMBIGUOUS LANGUAGE.

Agreement in clear and unambiguous language is to be interpreted by its own terms, without resort to parol evidence of what was said between the parties during the negotiations. 3. CONTRACTS 176(2)-PROVINCE OF COURT -INTERPRETATION OF CONTRACT.

Interpretation of a contract in clear and unambiguous language is for the court. 4. EVIDENCE 441(1) PAROL EVIDENCEADDITIONAL ORAL AGREEMENT.

Parol evidence may be received for the purpose of showing an additional oral agreement, entered into at the time of making the written

contract, not inconsistent therewith. 5. EVIDENCE

appellate court, since exceptor has burden of making record affirmatively show the error coinmitted below.

Exception from Orleans County Court; Fred M. Butler, Judge.

Action by Dennison L. Wood against Jesse James. Defendant's motion for a directed verdict was overruled, and he excepts. Motion overruled.

Argued before WATSON, C. J., and POWERS, TAYLOR, and MILES, JJ.

Frank D. Thompson, of Barton, for plaintiff.

Dunnett, Shields & Conant, of St. Johnsbury, for defendant.

MILES, J. This is an action of contract in the common counts in assumpsit to recover money paid by plaintiff to defendant upon a contract for the sale of real estate by the latter to the former, dated March 28, 1917. The plea is the general issue. In and by the contract the defendant agreed to convey to the plaintiff certain real estate and personal property, for which the plaintiff agreed to pay the defendant the sum of $7,500, as follows: $2,500 on the day of the contract, and the balance on or before the 1st day of May, 1917; and the defendant agreed, upon the completion of the payment of the full amount according to the terms named, he would convey and deliver to the plaintiff the property, giving him a perfect title to the

same. On the execution of the contract, the 397(2)-CONTRACTS-TERMS-plaintiff paid defendant the $2,500 in accordance therewith.

WRITTEN CONTRACT-PRESUMPTIONS.

The presumption of law is that a writing contains the whole contract.

On the 29th day of April, 1917, the plaintiff went to the farm in question with the intention of completing the payment for the property purchased and of taking the conveyance and possession thereof, all in accordance with the terms of the contract. On that day the plaintiff and defendant looked over a part of the premises, and on the fol

6. VENDOR AND PURCHASER 87-RESCISSION OF CONTRACT BY AGREEMENT-EFFECT. Where parties to land contract made agreement declaring contract void and releasing each other from the conditions therein, each party was entitled to be restored to former situation, received by the other by virtue of the resciallowing day they entered into an agreement,

and to have restored to him that which has been

ed contract.

7. APPEAL AND ERROR 1062(4)—REVIEWHARMLESS ERROR.

The submission of interpretation of contract to jury, where it was in clear and unambiguous language, was harmless, where jury rendered the proper verdict.

written on the paper containing the contract of sale, which agreement was as follows:

"The above agreement is hereby declared void, and the parties hereby release each other from the above and all the conditions therein specified."

Though this agreement was dated April

8. APPEAL AND ERROR 856(1)-REVIEW-28, 1917, it was signed on April 30th. DISPOSITION-AFFIRMATION. The defendant was allowed to introduce Judgment will be affirmed, if it can be on parol testimony tending to show the converany legal ground, whether it be on a ground pre-sation had between him and the plaintiff, sented in argument or not. leading up to and resulting in the execution of the agreement of rescission, and from the conversation so shown he claimed to have understood, and to have had a right to understand, that the plaintiff assented to his re

9. APPEAL AND ERROR REVERSAL.

901-DISPOSITION

Judgment will not be reversed on ground not raised below or presented in argument for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(106 A.)

taining the money paid under the original contract. The plaintiff denied that any conversation was had between them, respecting the rescission, of the nature or character claimed by defendant, and this was made a controverted question at the trial.

At the close of the evidence the defendant made a motion for a directed verdict in his favor, on the grounds: (1) That there was no cause of action shown by a fair interpretation of evidence; and (2) that the contract of rescission, in effect, discharged

both parties from all right, title, or interest in or to or concerning the contract of sale, up to the time the writing was made and signed. The motion was overruled and exception saved.

If the parol evidence mentioned above were proper for consideration in construing the rescissory agreement, it presented a question for the jury. The second ground assigned, as we understand the record, is based upon the construction of this agreement, exclusive of the parol evidence. Unless it means this, the same question in effect is presented as on the first ground of the mo

tion.

"The question in this, and other cases of construction of written instruments, is, not what was the intention of the parties, but what is the meaning of the words they have used."

In Cardinal Rules of Legal Interpretation, by Beal (2d Ed.) 59, 60, the same thing is stated, referring to other English cases. Smith v. Fitzgerald, is to the same effect.

In Clement v. Bank of Rutland, 61 Vt. 298, 17 Atl. 717, 4 L. R. A. 425, it is said: "While it is true that the intention of the be gathered from the language of the deed, and grantor must govern, yet that intention must cannot rest in mental purpose alone."

In Vermont Marble Co. v. Eastman, it is said:

"The language of this deed interpreted in connection with, and in reference to, the nature and condition of the subject-matter of the grant at the time the instrument was executed, and the obvious purpose the parties had in view, is clear and unambiguous, its meaning is a question of law for the court, and the intent cannot be altered by evidence, or findings, of exThe language being clear and unambiguous, the deed is to be interpreted by its own language, and the court is not at liberty to look at extraneous circumstances for reasons to ascertain its intent; and the understanding of the parties must be deemed to be that which their own written instru

traneous circumstances.

ment declares."

[1] By this agreement the previous contract was rescinded by the mutual consent of the parties. It contains mutual stipulations, and is a release of each party to the other. The release of one is a consideration for the release of the other. Perry v. Buckman, 33 Vt. 7; Collyer & Co. v. Moulton, 9 R. I. 90, 98 Am. Dec. 370; Cummings v. Arnold, 3 Metc. (Mass.) 486, 37 Am. Dec. 155. In line with the above see In re Stevens & Adams, W. B. Locklin, Receiver, 74 Vt. 408, 412, 52 Atl. 1034; Lamson v. Lamson, 52 Vt. 595, 599; Missisquoi Bank v. Sabin, 48 Vt. 239, 245; Hill v. Smith & Carpenter, 34 Vt.pretation given depends, not only the dispo

535, 544.

The cases of Springsteen v. Samson, 32 N. Y. 703, New York Life Ins. Co. v. Hoyt, 161 N. Y. 8, 55 N. E. 299, and Geneva v. Henson, 195 N. Y. 447, 464, 88 N. E. 1104, are directly in point.

[3] That the interpretation was therefore for the court is too well understood to need the citation of authorities, and on the inter

sition of a motion for a verdict, but of the [2] This agreement is clear in language case as well. Of course, if the rescissory and unambiguous, and is to be interpreted by contract is reasonably subject to two conits own terms, without resort to parol evi-structions, or is otherwise ambiguous, then dence of what was said between the parties extraneous evidence may be used in aid of during the negotiations thereof. The writ- the proper construction to meet the intent of ten agreement must be taken as intended to the parties. But, unless it comes to that, contain the terms agreed upon, and as de- the contract cannot be construed other than claring the understanding of the parties. according to its own language. Flanders v. Fay, 40 Vt. 316; Smith v. Fitzgerald, 59 Vt. 451, 9 Atl. 604; Vermont Marble Co. v. Eastman, 91 Vt. 425, 101 Atl. 151. The general rule, says Mr. Spence in his work on Equitable Jurisdiction, vol. 1, p.

556,

"excludes from the consideration of the court every question but this:

"What is the meaning of the words which the parties have used? The question is not, broadly, what was the intention of the parties; what the meaning of the words indicate must be taken to have been the intention."

In Rickman v. Carstairs, 5 B. & Ad. 651, 663, Lord Denman says:

Adams v. Smilie, 50 Vt. 1, was a bill in chancery, among other things, to enjoin a suit at law brought to recover on a written contract containing an unqualified promise to pay a sum certain. The bill set forth a contemporaneous verbal agreement by which a part of the sum promised to be paid was to consist in real estate. The court in that case say:

"In the defendant's suit at law, the rule of

evidence would prevail that does not permit anything but the writing to show what were the

terms of the contract."

[4, 5] There is no doubt but that parol evidence may be received for the purpose or

The case, therefore, falls within the general rule that, where a contract is annulled or rescinded by mutual consent, each party is

showing an additional oral agreement en- tion within those specifically released, it is tered into by the parties at the time of mak-made plain that the intention of the paring the written agreement, not inconsistent ties was to effect a total dissolution of the therewith. We apprehend that the limitation contract, restoring the parties to their forof this doctrine is pretty generally, and per- mer situation. Such a dissolution restricts haps fully, stated in Winn v. Chamberlin, 32 the parties to the legal rights which each Vt. 318. The presumption of law is that had before the contract was made. Harris the writing contains the whole contract. v. Hiscock, 91 N. Y. 340. Wason v. Rowe, 16 Vt. 525; Winn v. Chamberlin, supra. And the exception to this rule is where it is satisfactorily shown that, for some reason, the parties did not intend to re-entitled to have restored to him that which duce the whole contract to writing, and the portion omitted is consistent with the writing. It is said in the authority last cited: "And a written memorandum of a transaction will never exclude proof of stipulations not included in the writing, where both parties agree that the writing shall not contain the whole contract, unless the additional matters are inconsistent with the writing. The writing, as far as it goes, is always conclusive between the parties, and is presumed to contain the whole contract made at the time, and if anything is omitted by mistake of either or both of the parties, it cannot be shown. The only remedy in such case is to reform the contract in a court of equity."

See Reynolds v. Hassam, 56 Vt. 449; Dunnett & Slack v. Gibson, 78 Vt. 439, 63 Atl. 141. But this principle is not to be applied where the oral part of the agreement is inconsistent with the written instrument. Dixon v. Blondin, 58 Vt. 689, 5 Atl. 514.

Where there is no ambiguity in the contract that requires explanation by oral testimony such testimony is no more admissible to vary the clear and settled legal meaning and effect of a written contract than it is to vary its terms. Brandon Mfg. Co. v. Morse, 48 Vt. 322. See, also, Kinnear & Gager Mfg. Co. v. Miner, 88 Vt. 324, 92 Atl. 459.

[6] When the rescissory contract was entered into, nothing had been done in performance of the contract of sale, except the payment by the plaintiff of part of the purchase money. By the terms of the contract, the plaintiff was to receive a conveyance and delivery of the property upon the completion of the payment of the total amount of the purchase price within a time limited. Before the expiration of such time, the parties by agreement declared that contract "void" and released each other from it and all the conditions therein specified. This agreement contained no provision restricting its operation and effect. If anything be needed beyond declaring the previous contract void, to show the intent of the parties to effect an entire abandonment and dissolution thereof, it is found by the mutual release not only from the contract, but from "all the conditions therein specified." One of the conditions included was that requiring the payment of $2,500 upon the execution of the written agreement. By placing this condi

has been received by the other by virtue of the rescinded contract. Smead v. Lamphere, 87 Vt. 1, 86 Atl. 1005; Fitzsimons v. Richardson, 86 Vt. 229, 84 Atl. 811; Pierce v. Staub, 78 Conn, 459, 62 Atl. 760, 3 L. R. A. (N. S.) 785, 112 Am. St. Rep. 163.

The defendant relies upon the case of Tice v. Zinsser, 76 N. Y. 549, as supporting his position. There the general rule, where there is a rescission by mutual consent, is stated in substance as above; but, says the court, this general rule does not apply where there is an agreement connected with the rescission which restricts its operation and effect. That action was brought to recover back money paid on a contract for the sale by the defendant to the plaintiff of certain real estate. The plaintiff took possession. Subsequently there was a mutual release, in writing, by each of the parties, of all “right, title, and interest under and by virtue of the" contract, which was to be canceled and of no effect from the date of rescission. The court said that in this respect the case differs very materially from one where there is no limitation and the surrender is without any qualification; that the plaintiff by his agreement had expressly given up all his right to the money paid, and consequently could not maintain the action. We think there is a plain distinction between a release of all right, title and interest under and by virtue of a contract, as there shown, and a release from the contract itself and all the conditions therein specified, as shown by the case at bar.

[7] The defendant's motion for a verdict was properly overruled, though there was no question of fact to be submitted to the jury. The determinative question in the case was wholly one of law, and under the proper interpretation of the rescissory contract the plaintiff was entitled to judgment for the amount claimed, and the court should have so ruled as essential to the rights of the parties in the trial of the case; yet, as the verdict rendered was for the plaintiff for that amount, the result was the same, and neither party was harmed by the submission. It necessarily follows that all questions presented on review, other than on a motion for a verdict, are immaterial to the rights involved, and the rulings were harmless to the defendant.