Frizzle v. Dearth et als.

the said Dorotha and cancelled, but no reconveyance of said premises was made to the orator, who ever since that time had been in possession of them, and had supported himself and his wife, and had paid said prior mortgage of two hundred dollars; that no administration had ever been granted on the estate of the said Amasa, but that all the debts due from him had been paid; that he left two daughters, Elvira and Amanda, who were his only heirs, and were minors residing with their mother, never having had any guardians appointed for them, and that his said widow Dorotha had since married Frederick P. Dearth, to both of whom he had applied for an acquittance of their interest in the premises, which they had declined to give, averring that there was no necessity therefor. The bill prayed that the court would appoint guardians ad litem, to answer and defend for the said Elvira Frizzle and Amanda Frizzle; and that they, by their guardian, and the said Frederick P. Dearth and Dorotha his wife be decreed to release to the orator all their right, title and interest in and to the premises, &c.

The defendants Frederick P. Dearth and Dorotha his wife, and the said Elvira and Amanda Frizzle by the said Frederick P. Dearth, as their guardian ad litem, answered the bill, admitting the conveyance of the premises to the said Amasa, the promise and mortgage of the said Amasa, his death, and the performance by him of his said promise and obligation up to that time; and further setting up and insisting that the two hundred dollars referred to in the condition of his mortgage was also paid by him before his death; and that the said Dorotha performed said agreement until about the fifth of May, 1849, and that she had always been ready and willing on her part to do so, but that on or about the 8th of May, 1849, the orator and his son, Benjamin C. Frizzle, applied to the said Dorotha, then a widow, and requested that she should, and that upon their request she did give the said Benjamin a deed of her interest in the property, and transferred to him the personal property her husband had received of the orator; in consideration of which, the obligation of the said Amasa was surrendered to her, and she and the estate of said Amasa released from a performance of it; but denying that it was agreed or understood that the equity of redemption in the real estate was to be surrendered, and the

Frizzle v. Dearth et als.

orator reinstated in his title to the same; and insisting that by reason of what then and there took place, the conditions in the mortgage deed were in effect satisfied, and the mortgage discharged; and further setting forth, that in June, 1849, the said Benjamin C. Frizzle died, and that soon thereafter his administrator returned to the said Dorotha her deed of her interest in said premises, which she had executed to the said Benjamin, but which had never been recorded; which, at the request of the said administrator she received and destroyed; and that ever since that time she had been ready and willing, notwithstanding the surrender to her of the obligation or promise of the said Amasa, to perform and fulfill it; and, if there was any part of said two hundred dollars mentioned in the condition of his mortgage, which was unpaid, to pay it; but that the orator had, since the death of said Benjamin, been in possession of said premises, the income and profits of which, if carefully managed, were sufficient for his support and that of his wife, and that the defendants were ready and willing to supply any deficiency which there may have been in this respect.

The answer was traversed and testimony was taken, the conclusions which are deduced from it being sufficiently stated in the opinion of the court.

[The reporter has no statement or information as to the decree made by the court of chancery, except that contained in the opinion of the court, by which it was affirmed.]

W. Heywood for the orator.

Cooper & Bartlett for the defendant.

The opinion of the court was delivered, at the circuit session in September, by

REDFIELD, CH. J. From the bill, answers and testimony in this case we are satisfied that after the death of Amasa Frizzle, his widow, the defendant Dorotha, became anxious to be relieved from the further performance of the contract, after the supplies her husband had furnished were exhausted, and she had herself furnished them one year, and requested the orator to make some arrangement for that purpose, which was finally effected by Benja

Frizzle v. Dearth et als.

min C. Frizzle assuming the duty of maintaining his father and mother, and taking the property. At this time, it is very obvious, all the parties concerned were fully satisfied with the arrangement which was made, and the widow of Amasa, the defendant Dorotha, gave a full release of the land which seems to have been regarded, at the time, as sufficient to vest the title in Benjamin C., and she received all she demanded for what she and her husband had done towards the performance of the contract.

Benjamin C. soon deceased, and this deed was surrendered to the defendant Dorotha, because the administrator could not be allowed to undertake the performance of any such contract. But the orator still continued to get his support out of the property, without any aid from Dorotha, or any one on her behalf, she, in fact, regarding herself as released from the contract, and so she seems to have been regarded by all concerned till the bringing of the bill in this case.

The property having been surrendered to the orator, since the death of his son Benjamin C., and he having been left to shift for himself, it seems to us reasonable that the title should be quieted in him. There seems to have been such a failure to perform the contract, that, upon this bill to foreclose the equity of redemption in the defendants, the orator is entitled to the decree asked for. The case is similar in its equities to that of Devereaux v. Cooper, 11 Vt. 103. The mortgage seems to have been paid off by means of property coming from the orator. There is no cross bill claiming anything on the ground of part maintenance. It would be difficult, if not impossible, for the heirs or personal representatives of Amasa to perform this contract. And now, after having been abandoned for so long a time by them, it will be impossible for them to make amends for past delinquencies. The decree of the court of chancery seems to have been in all respects equitable, and it is affirmed.

We see no good reason why the defendants should be entitled to costs in this case, as in a bill to redeem. It is more like a bill to foreclose.

Decree affirmed.

Hall v. Nasmith.

THOMAS HALL v. WILLLIAM G. NASMITH.

Statute of limitations; absence from the state. Pleading.

Mere absence from the state will not prevent the operation of the statute of limitations while the debtor retains a residence in it by which process may be served upon him.

If the debtor has his fixed residence out of the state, all of his absences from the state are to be deducted from the time during which the statute of limitations would otherwise be running.

A replication, to a plea of the statute of limitations, that before the statute had run to wit, from January 1, 1848, to the commencement of the suit, the defendant was absent from and resided out of the state, does not assert a continuing absence, or an absence, construing the averment against the pleader, for more than a single day.

A rejoinder to such a replication that within the time mentioned the defendant was frequently in this state to the knowledge of the plaintiff, held sufficient.

ASSUMPSIT. The date of the writ does not appear in any of the papers in the hands of the reporter. The defendant plead the statute of limitations; to which the plaintiff replied "that after his said cause of action accrued, and before the statute of limitations had run thereon, to wit, from the first day of January, 1848, to the time of the commencement of this action, the said Nasmith was absent from and resided out of this state, to wit, at Northumberland, in the state of New Hampshire; and during all of the time aforesaid, he, the said Nasmith, had no known property within this state, which could, by the common and ordinary process of law, be attached."

The defendant rejoined, "that, within the time mentioned in the said replication, he was frequently in this state, to wit, at Guildhall, in the county of Essex, to the knowledge of the plaintiff, when and where the plaintiff could have served the process upon him, the defendant."

To this rejoinder the plaintiff demurred, and the county court, May Term, 1855,-POLAND, J., presiding,-adjudged the rejoinder insufficient, to which the defendant excepted.

J. Steele for the defendant.

It is admitted by the pleadings, on the part of the plaintiff, that although the defendant, after the cause of action accrued, resided out of the state, that he was not absent from the state, and that he

Hall v. Nasmith,

was in Guildhall, days and weeks, within the knowledge of the plaintiff.

By the Compiled Statutes, p. 379, § 14, it is as necessary that the defendant in this cause should be absent from the state as it is that he should reside out of the state, to prevent the statute of limitations from being a bar to the action.

W. Heywood for the plaintiff.

The defendant, by his rejoinder, tenders an immaterial issue. He misapprehends the statute by supposing that a frequent coming into the state will have the same effect to bar the claim as a residence in the state; Gilman v. Cutts, 3 Foster 376.

The opinion of the court was delivered, at the circuit session in September, by

REDFIELD, CH. J. The question attempted to be raised here, in general terms, is, what will obviate the effect of absence from the state, which, by our statute, suspends the operation of the statute of limitations. And the first inquiry is, whether every absence, and, if not, what absence from the state suspends the operation of the statute. The language of the statute is "shall be absent from and reside out of the state." It is obvious, we think, that mere absence from the state is not sufficient. The person must be absent from and reside out of the state. Temporary absences from the state, upon journeys, or, indeed any absence, while having a residence in the state by which service may be made upon the debtor, is not to be taken into the account. Hackett v. Kendall, 23 Vt. 275. But if the party be absent from the state, leaving no such domicil in the state, this will suspend the operation of the statute. Or, if the party have a fixed residence out of the state, all his absences from the state are to be deducted from the term of limitation fixed by the statute.

It will follow then that, to break the suspension of the time, the debtor must either acquire a domicil within the state, or else remain in the state. Whether it is indispensable that his return to, and remaining in the state, shall be known to the creditor, is, perhaps, questionable. It would, from the statute, and the decisions in other states, seem probable that this is not essential. Didier v.