he held them before granting them away, and that the covenantee will be estopped by the judgment from setting up his title deed against the grantor. 2 Wash. Real Prop. (2d Ed.) 731, citing Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22; Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49. Another writer suggests that the recovery of damages upon the covenant for seisin will of itself operate at law to revest the title in the covenantor, and says that the decisions in the cases cited as above must have proceeded upon this ground. Rawle, Cov. for Title (4th Ed.) 280. In cases where the grantee in a deed containing covenants which run with the land recovers for a breach of the covenant of seisin after he has made conveyance of the premises, it is the practice in this state to stay execution until the plaintiff procures and files a release from his grantee. Catlin v. Hurlburt, 3 Vt. 403; Blake v. Burnham, 29 Vt. 437; Tillotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 6 Am. St. Rep. 95. See, also, Flint v. Steadman, 36 Vt. 210, 219. And the writer last mentioned considers that a covenantee who had recovered back the consideration money would be restrained in equity from setting up, as against his covenantor, the title which, by his action on the covenant, he had asserted to be defective, and would probably be required to reconvey. Rawle, Cov. for Title (4th Ed.) 282. by the defendants in the action of debt be set off against an equal part of the orator's third; that the remaining two-thirds of the amount recovered from the defendants be held and accounted for in due course by the orator as administrator; and that a hearing as to debts and expenses be had, if necessary. (89 Vt. 224) In re REYNOLDS' ESTATE. 1. EXECUTORS AND ADMINISTRATORS 330- [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1365, 1366; Dec. Dig. 330.] ent, affirmed upon appeal to the county court, Nancy M. Stevens, executrix of Mrs. Reynolds, and the executrix of the estate of Mr. Reynolds except. Judgment affirmed in part and vacated in part. The executrix of Sarah C. Reynolds apAs equity has jurisdiction of the case on plied for an order to sell the real estate of another ground, it will be well enough to her decedent to pay debts. To an order diset aside the orator's deed, without consider-recting a sale of all the real estate of deceding whether the protection afforded him by the judgment at law is adequate. No special consideration need be given to the right of defendant Rosa as heir, for her interest will be protected by the allowance of rent in behalf of the estate. Inquiry as to the existence of debts and expenses may be had on proper application; and if it is ascertained that there are unsatisfied debts or expenses chargeable upon the real estate, the same will remain a charge upon the property until the matter is disposed of in due course by the probate court. The chancellor rendered a pro forma decree in favor of the orator as administrator for the amount of rents found by the master above the sum paid by the defendants, with award of execution and writ of possession, if needed, and declaring the deed void and of no effect. The case will be remanded, with instructions that the decree be modified and supplemented in accordance with this opinion, and thereupon affirmed. Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ. C. G. Austin & Sons, of St. Albans, for appellant. H. Elmer Wheeler and Elmer Johnson, both of St. Albans, for appellee. POWERS, J. The case shown by the record is an appeal from an order of the probate court granting to the executrix of Sarah C. Reynolds' estate a license to sell all of the real estate belonging thereto. The case made in argument requires a construction of the will of Mrs. Reynolds, and a determination of certain questions regarding the law of abatement of legacies, and some others. It appears that Mrs. Reynolds died testate, Decree modified, and affirmed as modified, leaving a farm on which she and her husand cause remanded, with directions that band resided. This farm consisted of several the orator's deed to the defendants be set parcels, and different portions were subject aside; that the amount found due from the to certain mortgages. Abbie A. Morrill is defendants on account of rents be decreed her surviving executrix. The personal propto the orator, one-third in his own right and erty having been applied to the payment of two-thirds in his right as administrator; the debts of the estate, and having proved to that the amount of the judgment recovered be insufficient for that purpose, the executrix 3. EVIDENCE BILITY-Value. 145-COMPETENCY-ADMISSI made application to the probate court for the ownership of the property, so that the license to sell the real estate for the purpose court properly overruled a motion for directed verdict. of raising money to liquidate the unpaid [Ed. Note.-For other cases, see Trover and debts and expenses of administration, therein Conversion, Cent. Dig. §§ 232-244; Dec. Dig. representing that, while it would not be 40.] necessary to take all the real estate for this purpose, a part thereof could not be sold without injury to those interested in the remainder. The probate court found the facts according to these allegations, and granted the license as prayed for. No question is made as to the regularity of these proceedings. An appeal was taken, and the county court found the facts to be as represented in the application, and affirmed the order. The case comes here on exceptions filed by the executrix of Mrs. Reynolds, and by the executrix of the estate of Mr. Reynolds, who was a legatee under the will. [1] As already suggested, the only question presented by the record is the legality of the order granting the license to sell all the real estate. The finding is that a part of this estate cannot be sold without injury to those interested in the remainder. The proceedings are in accordance with the statutory requirements. In these circumstances, the order was fully warranted by P. S. 2868, and the record discloses no error. [2] The other questions were not involved and are not for consideration. The probate court well understood this, and provided in the order that they should await the proper time for determination. And while the county court apparently yielded to the appeal of counsel and passed upon the questions, this court will not review this action. In re Segur's Will, 71 Vt. 224, 44 Atl. 342. It is vain for counsel to approach this court with suggestions of convenience or expediency. We do not decide suppositional questions (State v. Webster, 80 Vt. 391, 67 Atl. 1098), questions submitted by agreement (Alfred v. Alfred, 87 Vt. 542, 90 Atl. 580), or questions prematurely raised (Turner's Ex'r v. Lyman, 64 Vt. 167, 24 Atl. 763). The judgment, so far as the license to sell is concerned, is affirmed. In other respects it is vacated and held for naught. Let the result be certified to the probate court. (89 Vt. 346) there Where the issue was the value of a mare, her value three months before the cause of acand plaintiff was permitted to testify as to tion arose, his testimony was not inadmissible as too remote, where it did not appear that was any unusual happening to change the value. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 434; Dec. Dig. 145.] 4. APPEAL AND ERROR 1052 - HARMLESS ERROR-ADMISSION OF EVIDENCE. Where verdict was directed for defendant on one count, his exceptions to the admission of evidence thereon will not be heard. Error, Cent. Dig. 88 4171-4177; Dec. Dig. [Ed. Note.-For other cases, see Appeal and 1052.] 5. TROVER AND CONVERSION 66 — TRIAL— DAMAGES-EXEMPLARY DAMAGES. In an action of trover, where the facts warranted a finding of reckless and wanton conversion of property, it was not error to send the question of exemplary damages to the jury. [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. 88 288-294; Dec. Dig. 66.] 6. TRIAL 121-ARGUMENT OF COUNSEL. In an action for the conversion of mortgaged horses, plaintiff's counsel, in closing, referred to one horse, as to which the case was withdrawn from the jury, and stated that defendant took the horse on a trip, on which the horse was supposed to have died, that it would the time the evidence showed he was in a cerhave been difficult to have found defendant at tain place, that defendant then took a long trip extending from Maine to British Northwest, finally returning to his home, and asked the jury to give sufficient damages, so that fellows who gave chattel mortgages and then sold the property or went on famous trips would not be received with favor. Held not proper argument on the issue of defendant's credibility, but a mere plea to punish such fellows as defendant, so that the refusal of the court to interfere was error; punitive damages being only based on the nature of the act for which recovery is had. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. 7. TROVER AND CONVERSION -EXCESSIVE DAMAGES. ~121.] Where plaintiff declared for the conversion of a bay mare and two horses, mortgaged to him by defendant in the sum of $300, and the jury found a conversion of the bay mare alone, returning verdict for the full amount of the ad damnum, more than the amount of the note secured, the award of damages was excessive. GREEN V. LACLAIR. (Supreme Court of Vermont. Caledonia. Oct. 11, 1915.) [Ed. Note. For other cases, see Trover and 48-JOINDER-TROVER AND DE-Conversion, Dec. Dig. 62.] 1. ACTION CEIT. A cause of action for inducing plaintiff by fraudulent representations to take a mortgage on horses may be joined with one in trover for the conversion of the horses, as the action is for deceit, and not for breach of warranty. [Ed. Note.-For other cases, see Action, Cent. Dig. 88 450, 471, 490-510; Dec. Dig. 48.] 2. TROVER AND CONVERSION 40-EVIDENCE -SUFFICIENCY. Evidence in an action in trover held sufficient to present a question for the jury as to 8. TRIAL 133-ARGUMENT OF COUNSELCOMMENT ON FAILURE TO TESTIFY-IN STRUCTIONS. Where counsel commented upon a witness' failure to testify upon a question, if the witness was equally accessible to both parties and his knowledge was known to both parties, the comment was improper, but the error was cured by an instruction to disregard the statements so made. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. 133.] Exceptions from Caledonia County Court; | whether the defendant converted a bay Frank L. Fish, Judge. mare, mortgaged to the plaintiff along with two other horses, by selling the mare to one Stanhope without the consent of the plaintiff. Action by Lewis I. Laclair against Bert W. Green. Verdict for plaintiff for $300, and defendant excepts. Affirmed in part and reversed in part. Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ. Simonds, Searles & Graves, of St. Johnsbury, for plaintiff. F. W. Baldwin, of Barton, for defendant. The At the close of the evidence the defendant moved the court to direct a verdict for him on the first count on the ground that, in the state of the evidence, there was nothing under that for the jury. The defendant's contentions are that the evidence does not show that the plaintiff had a valid mortgage upon the bay mare at the time of the alleged conHASELTON, J. [1] The declaration in version, and that it appears also that his this case was in two counts. The first disposition of her was with the consent of count was trover. The defendant claimed the plaintiff. With reference to this excepand claims that the second was a count for tion the transcript is referred to and is to breach of warranty, sounding in contract, control, and it is sufficient to say that on the and that so there was a misjoinder. Be- evidence the question of conversion was for fore the trial commenced the defendant the jury. moved the court to dismiss the action on [3] Upon the question of the value of the the ground of misjoinder. This motion was mare at the time of the conversion the plainoverruled, and the defendant excepted. But tiff was permitted to testify under objection the second count is case for deceit, and not and exception to her value the last time he assumpsit, and so was properly joined with saw her, which was about three months bethe count in trover. It sets out as the gist fore the conversion. This objection raised of the action that the plaintiff was induced no other question than that of remoteness, to take a chattel mortgage upon certain and the determination of that question ordihorses by the false and fraudulent statement narily rests in the discretion of the trial that one of the horses was free and clear of court. It so rested in this matter. all incumbrance, when, in fact, it was not, mare was about nine years old, and the recbut was incumbered by a lien due and un- ord before us suggests no unusual happening paid, "which was well known to the defend- as to her within the three months referred ant" when he gave the mortgage to the plain- to. Perkins v. Perley, 82 Vt. 524, 74 Atl. tiff. In the course of the count the defend- 231; State v. Barr, 84 Vt. 38, 42, 77 Atl. 914, ant is spoken of in one place as warranting 48 L. R. A. (N. S.) 302; Niles v. Central the horse to be free of all claims, but the Vermont Ry. Co., 87 Vt. 356, 360, 89 Atl. 629. deceit is relied on. The defendant criti- [4] The defendant argues three exceptions cizes the scienter as not sufficiently certain to rulings admitting evidence addressed to in its application, and in other respects. the second count only. As, however, a verBut, however sound or unsound these claims dict was directed for the defendant on that may be, grant that they are all well-ground- count, we have no occasion to review the ruled, and we still have, not a count in assump-ings. sit, but a count in case for deceit, defective, [5] The questions of chief moment in this but amendable. Ballard v. Greene, 87 Vt. 94, case relate to the matter of exemplary dam98, 88 Atl. 515; Spear's Adm'r v. Armstrong, ages. The defendant excepted to a ruling 86 Vt. 250, 84 Atl. 817; Davis' Adm'x v. of the court that there was evidence in the Rutland R. Co., 82 Vt. 24, 71 Atl. 724. Our case warranting the submission to the jury cases in which is considered the effect of of the question of exemplary damages at all. omitting the scienter altogether are not in But the court did not hold with the defendpoint. ant in respect to this broad claim, and we [2] The defendant raised or attempted to think the court was right. The selling or raise this question of misjoinder by a mo- otherwise trading off of mortgaged property tion to dismiss made at the close of the evi- without the consent of the mortgagee is a dence, and by a motion in arrest of judg-matter of serious import, and the jury might ment. But, as there was no misjoinder, we have found, from the transaction itself and do not discuss these motions nor the methods of taking advantage of a misjoinder. The court at some time ordered a verdict for the defendant upon the second count. Under the first count the plaintiff claimed on trial to recover for the conversion of a bay horse and a bay mare. Before the argument commenced, however, the court ruled that there was nothing for the jury under the claim of the conversion of the bay horse, the circumstances attending it, that the conversion of the bay mare was in reckless and wanton disregard of the rights of the plaintiff, and, if they so found, they could in their sound discretion allow exemplary damages, although the action was trover. Picknell v. Fulton, 89 Vt. 51, 94 Atl. 104; Downing v. Outerbridge. 79 Fed. 931, 25 C. C. A. 244; Harker v. Dement, 9 Gill (Md.) 7, 52 Am. Dec. 670, 676; Inman v. Ball, 65 Iowa, 543, R. Co., 101 Mo. App. 557, 73 S. W. 913; the plaintiff had put his ad damnum at $300. Reamer v. Morrison Express Co., 93 Mo. App. 501, 67 S. W. 718. [6] But here the plaintiff's attorney, in his closing argument, commented, as will appear, upon a trip made by the defendant with the bay horse some three or four months after the conversion of the bay mare. It will be remembered that the court refused to let the plaintiff go to the jury upon the question of the conversion of the bay horse. But in the closing argument for the plaintiff his counsel proceeded to say to the jury that the defendant took the bay horse and went on a trip through towns and places named, to one Chabot's, in Canaan, taking along colic cure. and food for himself and horse; that then near the Canadian border the horse was supposed to have died; that it would have been difficult to find the defendant at the time the evidence showed he was at Chabot's; that the defendant then continued his trip, going by tote team and stage to Maine, thence to the British Northwest, and from there back to Maine, finally returning to his home in Sutton, in this state; and that the jury ought to award sufficient damages so that the fellows who give chattel mortgages and then sell the property or go on famous trips will not be received with favor. Counsel for the defendant interrupted and objected to this line of argument as having nothing to do with the case as it then stood. The argument was defended as bearing on the truth of the defendant's testimony as tending to discredit it, and on that ground the court declined to interrupt the argument, and thereby ruled that it was proper, whereupon the defendant took an exception which was allowed. Now, it cannot be seriously contended that in talking about these performances of the defendant and the death of the bay horse some three or four months after the conversion of the bay mare, which was the only conversion to be argued, counsel was simply seeking to discredit the testimony of the defendant. The language was plain. The jury were exhorted to award such damages as such fellows as the defendant ought to be mulcted in. But exemplary damages can only be recovered on account of the nature of the act on account of which the plaintiff recovers, as manifested by the act or the circumstances attending or characterizing it. Hoadley v. Watson, 45 Vt. 289, 292, 12 Am. Rep. 197; Earl v. Tupper, 45 Vt. 275, 288; Roach v. Caldbeck, 64 Vt. 593, 597, 24 Atl. 989; Moore v. Duke, 84 Vt. 401, 408, 80 Atl. 194; Dubois v. Roby, 84 Vt. 465, 470, 80 Atl. 150. [7] The ruling of the court upon this argument was wrong. The argument was prejudicial in its nature, and there are indications that it was harmful. In declaring for the conversion of the bay mare and two horses Now, for the conversion of the bay mare alone the jury, as the docket entries show, returned a verdict for the full amount of the ad damnum. There are indications that they had regard to the amount of the plaintiff's note secured on the animal converted and two other horses, for their verdict considerably exceeded the amount of the note. We cannot treat the argument and the ruling thereon otherwise than as harmful. [8] There was an allusion in the argument to the failure of a witness to testify on a given point. If the witness was equally accessible to both parties, and the testimony which he could give was as much within the knowledge of the plaintiff as of the defendant, this allusion, or argument, was improper. Sears v. Duling, 79 Vt. 334, 65 Atl. 90. But it does not clearly appear from the bill of exceptions how this was, and the transcript is not referred to on this point. Besides, the court instructed the jury to disregard this part of the argument, and as the matter was left no error appears in respect to it. Other exceptions were taken to the argument and the rulings thereon which are not sustained. Some of them relate merely to the vigor with which counsel discussed evi- rather than condemned. In The defendant took some exceptions to the have the verdict set aside. The motion was charge of the court, and filed a motion to overruled, and the defendant excepted. The exceptions referred to in this paragraph raise no questions not already sufficiently considered, except one or two that are too clearly without merit to require consideration. Judgment affirmed, except as to the question of damages. As to that question judgment is reversed, and cause remanded. (89 Vt. 257) Washington. FRASER v. NERNEY et al (Supreme Court of Vermont. Oct. 11, 1915.) 237-VARIANCE-AMENDMENT 1. PLEADING TO CONFORM TO PROOF. Where, though the bill did not contain allegations sufficient to sustain the decree, the litigated, the disputed facts adequately found, questions between the parties had been fully and the plaintiff's right to relief established, he would be allowed to amend his allegations. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 603-619; Dec. Dig. 237.] 2. APPEAL AND ERROR 274-RESERVATION of GROUNDS OF REVIEW-EXCEPTIONS. An exception to the findings, on the ground that they were unsupported by the evidence, did not raise the question that they were unsustained by the bill. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. 274.] 3. WATERS AND WATER COURSES 133-PRESCRIPTION. From a time prior to 1886 until January 5, 1911, plaintiff took water from a spring on the adjoining land of defendant, through a pipe leading to his house, continuously, uninterruptedly, and under a claim of right, and for a time exceeding the necessary period such use was fully known and acquiesced in by the owners of the adjoining land. Held, that all the essential elements of an easement by prescription were present, and the fact that the owners of the spring also took water therefrom was immaterial. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 146; Dec. Dig. 133.] 4. WATERS AND WATER COURSES SCRIPTIVE RIGHTS. 127-Pre The right of an owner of land to the waste water from a spring flowing in a definite course through his land depended on his rights as a riparian owner, and he could gain no prescriptive rights therein, since the owners of the spring could not lawfully interfere with his use of the water. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 144; Dec. Dig. 127.] 5. WATERS AND WATER COURSES 79-RIPARIAN RIGHTS. The owners of land, on which was a spring from which waste water flowed in a definite course through the land of another, had as against such other party the right to a reasonable use of the water. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 70, 71; Dec. Dig. 79.] 6. WATERS AND WATER COURSES TIONS QUESTIONS OF FACT. 87-Ac Where an owner of land, across which the waste water from a spring flowed in a definite course, diverted it by means of a ram, thereby causing a considerable waste and prejudicing a lower owner, whether this was a reasonable use of the water was a question of fact. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 77-81, 83, 89, 90; Dec. Dig. 87.1 7. APPEAL AND ERROR 934-PRESUMPTIONS IN SUPPORT OF JUDGMENT. Where the trial court found that an owner of land, across which water flowed in a definite course, had diverted the water by means of a ram, that this caused a considerable waste, and that a lower owner was thereby prejudiced, it would be assumed, in support of a decree in favor of the lower owner, that the court found this to be an unreasonable use of the water, especially where the decree showed unmistakably that the court had the doctrine of reasonable use clearly in mind, as the inference that the use was unreasonable could reasonably be drawn from the facts found. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3777-3782; Dec. Dig. 934.] 8. APPEAL AND ERROR 694-RECORD-MAT TERS PRESENTED FOR REVIEW. The sufficiency of the evidence to support the findings is not before the Supreme Court, where the reference to the transcript is limited in terms to the purpose of showing the exceptions taken to the admission and rejection of Action by Daniel Fraser against Thomas Nerney and another. Decree for orator, and defendants appeal. Affirmed and remanded. Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ. John W. Gordon, of Barre, for appellants. Richard A. Hoar, of Barre, and R. M. Harvey, of Montpelier, for appellee. POWERS, J. This is a controversy between next door neighbors over the right of one to take water from a spring on the land of the other. The plaintiff asserts the right, and the defendants own the spring. [1, 2] If the case is to be disposed of on the sufficiency of the allegations of the bill, as the defendants insist, it might be difficult to sustain the decree (which was for the plaintiff) in all respects, for it might trouble one to point out in the bill allegations sufficient to sustain a prescriptive right in the spring. But, however this may be, it is apparent from the record that the questions between the parties have been fully litigated, the disputed facts adequately found, and the plaintiff's right to relief established. In these circumstances he will be allowed to amend his allegations, if necessary. North Troy Graded School District v. Troy, 80 Vt. 16, 66 Atl. 1033. Moreover, the record does not show that the defendants sufficiently raised this question below. be sure, they excepted to the findings on which the decree of a prescriptive right must have been predicated, but only on the ground that they were unsupported by the evidence. To The plaintiff's claim, when considered in the light of the findings, is made up of two parts: (1) An alleged right to take water from the spring by his pipe; and (2) a riparian right to have the waste water flow in its accustomed and well-defined channel across his land. To establish his right to take water from the spring by his pipe, the plaintiff relies upon a grant thereof to his predecessor in title as an appurtenant of the estate, an implied grant of the same as an apparent easement, and a right by prescription. He admits that he has no such right by express grant. [3] We pass over the others, and take up a consideration of the claim of title by prescription. It is found by the chancellor that the plaintiff and his grantors have from 1886, and a long time prior thereto, until January 5, 1911, used the water of this spring, taking the same through a pipe leading from the spring to the cellar of the dwelling house [Ed. Note. For other cases, see Appeal and on the plaintiff's farm, continuously, uninError, Cent. Dig. §§ 2910, 2915; Dec. Dig.terruptedly, and under a claim of right. It 694.] also appears from the findings that, for a Appeal in Chancery, Washington County; time exceeding the necessary period, such use Fred M. Butler, Chancellor. was fully known and acquiesced in by the evidence. |