girl claimed to be the owner of that horse? A. court.' This testimony to the fact that the girl made no claim as to owning the horse "Morgan" at the time the trade was made was corroborated by the testimony of Heath, who was present and heard what was said. In view of the foregoing testimony, it cannot be said that the finding to which the exception was taken was unsupported by the evidence. The weight of the evidence was for the trial court, and the fact that defendant's evidence, perhaps as strongly, tended to show to the contrary, does not affect the finding. the colt should be hers, and to this defend-j about the horse at all? A. She did not. Q. ant's husband consented. The colt was raised You say you never had any idea that this and always kept on the farm with the other horse kind. The daughter had made her home there with her father and mother during all the time, but for the past four years she had been away at school a large part of the time, coming home frequently. She always called "Morgan" her horse, and it was so treated by the family. At the time of the sale, the daughter, then 20 years old, was present, and heard the talk in respect to the four horses, and saw the money paid. There was some talk about the horse "Morgan" being her colt, but the plaintiff was not given to understand that she claimed it as her property. The facts found in this respect do not show, as a matter of law, a perfected gift. The findings do not show that Albertine ever exercised dominion over the colt when young, nor after it became a horse and was being used on the farm. It was always kept [7] The witness Heath testified in direct on defendant's farm, and, so far as the rec- examination to making a memorandum on ord shows, was used there by defendant the the day of the purchase of what was bought same as though it was one of her own horses, by plaintiffs of defendant, and, on being askwithout let or hindrance. The fact that Al-ed what minute of the trade he made in his bertine made her home there, and always called "Morgan" her horse, and it was so treated by the family, does not in law constitute a delivery by the defendant and acceptance by Albertine. These were questions of fact to be passed upon by the trial court. Fletcher v. Fletcher, 55 Vt. 325. They were not expressly found either way; but that they were inferentially found in the negative is reasonably certain from the finding that at the time of the sale, defendant owned "3 young horses," one of which was in fact "Morgan." Defendant requested the court to find and report whether Albertine understood that her horse "Morgan" was included in the sale to the plaintiffs, and excepted to the court's failure to make a finding on this subject. But, in view of our holding above, that the findings show no delivery in gift by the defendant and acceptance by Albertine, both essential to a perfected gift, this request and exception are immaterial. [6] Exception was taken to the finding that "the plaintiff was not given to understand that she (Albertine) claimed it ('Morgan') as her property," because it is not supported by the evidence. A complete transcript of the reporter's minutes is referred to, to determine whether there was any evidence warranting the findings made. It appears from the transcript that plaintiff Taplin testified in direct examination as follows: "Q. Did you learn while you were there (at defendant's house at time trade was made) hear any one say that this 'Morgan' horse belonged to this girl? A. I never heard it that day-nothing of the kind." In cross-examination, he testified on the same subject as follows: "Q. Did the girl tell you something about her horse there? A. She did not tell me anything diary, read the memorandum so made by him, stating that it was all he had on the book about what occurred at the time and place of the trade. The memorandum was then offered and received in evidence in connection with his testimony, to which no objection was made by defendant. The witness further testified that, after agreeing upon the price, Taplin named over to the defendant, in the presence of her husband, and of the daughter Albertine, and of the witness, just what he had bought, and wrote it down in his book at the same time, borrowing a pencil of the witness with which to write it, and that there was no talk made by defendant or the daughter that the horse "Morgan" belonged to the latter. In cross-examination the witness testified that he wrote down just what is in his book-did not name the number of cattle; that he did not pretend to write down the trade, and that the memorandum did not in any way refresh his recollection as to just what the talk was; that the memorandum was correct as to what took place, but did not contain it all. Thereupon defendant moved that this exhibit be stricken out of the case, and to the overruling of the motion saved an exception. We might very properly dispose of this exception on the ground that the memorandum was received in evidence without objection; but inasmuch as the aforementioned mem orandum, made by Taplin and testified to by him as correct, was received in evidence against defendant's exception on the ground that, as Taplin testified, it did not refresh his memory, the same question is there raised, and we dispose of the two exceptions together. As to the question in dispute, whether "Morgan" was included in the sale, the memoran for breach of covenant were not necessary par- 6. SET-OFF AND COUNTERCLAIM 29.] 49 [Ed. Note.-For other cases, see Set-Off and of his testimony that it was; and the memorandum of Taplin was confirmatory of his testimony to the same effect. In each of these instances there was a private memorandum shown to have been correctly made by the witness in connection with whose testimony it was received in evidence, one at the time of the transaction, and the other, action will not prevent the defendant from setAn assignment of a nonnegotiable chose in on the same day, of facts within the knowl-ting off demands against the plaintiff of recedge and recollection of the witness at the ord, which were mature and actionable before time he made the entry. Such a memoran- the assignment. dum may properly be received in evidence in connection with the testimony of the witness, for two purposes: One, when used to refresh the recollection of the witness; and the other, as auxiliary to, or confirmatory of, the evidence of the witness, when he professes to recollect the facts. For the latter purpose, the memorandums in question were properly received, and the exceptions are without force. Lapham v. Kelly, 35 Vt. 195; Cross v. Bartholomew, 42 Vt. 206; Cheney v. Ryegate, 55 Vt. 499; Stillwell v. Farewell, 64 Vt. 286, 24 Atl. 243. Judgment affirmed. (89 Vt. 214) CAMPBELL et al. v. MARTIN et ux. (Supreme Court of Vermont. Franklin. Oct. 9, 1915.) 1. JUDGMENT 652-CONSTRUCTION-ACTION OF COVENANT. A default judgment for plaintiffs, in an action for breach of the covenant contained in a warranty deed, established nothing beyond the allegations of the declaration, and did not determine the right of defendants therein to receive rent. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1164; Dec. Dig. ~652.] 2. JUDGMENT OFF. 713-CONCLUSIVENESS-SET Counterclaim, Cent. Dig. §§ 107-112, 114-117; 7. CURTESY SURVIVING HUSBAND The surviving husband of an intestate leaving issue becomes the owner in fee of one-third in value of her real estate held in fee simple, subject to the payment of her debts and administration expenses in default of sufficient personalty, and, after the administrator's pos session for payment of debts, etc., is entitled to have such interest severed and set out to him, valid conveyance of his share at any time. and, subject to such limitations, may make a [Ed. Note.-For other cases, see Curtesy, Cent. Dig. §§ 43-64; Dec. Dig. 12.] 8. JUDGMENT 652-CONCLUSIVENESS-ACTION OF COVENANT. A default judgment in an action by the grantee for breach of covenants contained in a deed of the whole estate by a surviving husband, entitled to the fee of one-third of his deceased wife's realty, allowing as damages for the breach the price paid, implied an entire failure of title, and was conclusive as to the consideration received by the grantor, and its character as purchase money, notwithstanding a pending appeal from a judgment in an action of debt on the default judgment. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1164; Dec. Dig. ~652.] 9. JUDGMENT 735 — JUDGMENT ON COVENANT-CONCLUSIVENESS-RENT. Plaintiff, owning a one-third interest in the fee of the realty left by his deceased wife, who conveyed the whole realty with covenants of seisin, and who suffered a judgment for damages in the grantee's action for breach of covenant, was not thereby precluded from asserting his right to a share of the rents recovered from the grantees. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1263, 1265; Dec. Dig. 735.] 10. SET-OFF AND COUNTERCLAIM ~~8EQUITABLE SET-OFF. On a bill for an accounting as to rent which was due partly to the plaintiff individually, the finding of the master that defendants, who had obtained a judgment for damages against the plaintiff for breach of covenant, had no attachable property other than their interest in the judgment. afforded a basis for counterclaims, and a ground for the exercise of equitable jurisdiction. [Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 9-11; Dec. Dig. ~~8.] 11. COVENANTS 140-DAMAGES FOR BREACH -EFFECT OF RECOVERY ON TITLE. Where plaintiff, entitled to the fee of onethird of the realty of his deceased wife, conveyed the whole realty with covenants of warranty, and the grantee recovered judgment for damages against him for breach of the warranty as for an entire failure of title, on payment of the judgment the rights of the grantees in the property will cease, and the title will stand | covenants. The grantees took possession unas it did before the deed was executed. [Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 1-19, 274; Dec. Dig. 140.] 12. COVENANTS 138-BREACH OF COVE NANT-ACTION-EXECUTION. Where the grantee in a deed containing covenants running with the land recovers for a breach of the covenant of seisin after he has made conveyance of the premises, it is the practice to stay execution until the plaintiff procures and files a release from his grantee. [Ed. Note. For other cases, see Covenants, Cent. Dig. § 272; Dec. Dig. 138.] Appeal in Chancery, Franklin County; Willard W. Miles, Chancellor. Action by Abraham Campbell and Abraham Campbell, as administrator of the estate of Mary Campbell, deceased, against Frank Martin and wife. Decree for plain'tiffs, and defendants appeal. Modified and affirmed, and cause remanded, with directions. Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ. Furman & Webster, of Swanton, for appellants. C. G. Austin & Sons, of St. Albans, for appellees. der this deed April 15, 1906, and have since remained in possession, but have never paid anything further, either as rent or on the purchase price. In 1908 the defendants sued the orator on the covenants in his deed, and obtained a judgment upon default at the September term; and the case was referred to the clerk for the assessment of damages, and a full hearing was had. The written agreement had then been lost. The material points contested were whether the entire purchase price had been paid or only $65, and whether there was a provision in the contract that in default of full payment the payments made should be treated as rent. There having been a judgment on default, the clerk considered that the measure of damages was fixed by law at the amount actually paid for the premises, and that his only duty was to find the amount paid and assess the damages at that sum; and this he did, and determined no other issue. An execution issued on the judgment and was returned, unsatisfied, and the plaintiffs then brought an action of debt on the judgment returnable before a justice of the peace, and obtained a judgment in that action; and an appeal therefrom was taken to the county court, where the suit is now pending. The orator was not appointed administrator un til after the covenant suit was disposed of. MUNSON, J. Mary Campbell, the orator's intestate, owned at the time of her death a house and lot in the village of Swanton. Her husband, Abraham Campbell, the orator herein, had no interest in this property other than that which the law gives to a surThe orator's case, as presented in the bill, viving husband. The defendant Rosa Martin is based upon the claim that the orator inis one of eight surviving children of Abra- dividually and his wife were the owners of ham and Mary Campbell, and was married the premises in question, but that the orator to the defendant Frank Martin after the paid the entire purchase price of the properdeath of her mother. Soon after their mar- ty and was in equity the sole owner thereof, riage the defendants went to live with the and that the title was conveyed to the oraorator at his home on other premises. Ator's wife by his direction. The prayer of few months later the orator borrowed $50 the bill is that the defendants be decreed to from defendant Frank, and this transaction reconvey the premises to the orator, or that was soon followed by a sale of the intes- the deed of the orator to them be set aside, tate's house and lot to Frank on certain and that the defendants be restrained from terms agreed upon. The agreement was further prosecution of their suit at law; soon reduced to writing, and in the writing that an accounting be had to ascertain what the consideration was placed at $400. But is equitably due the orator on account of there was an accompanying oral understand- the purchase price of said premises, or of ing that the purchase price was to be $300 the rentals due to the orator either individonly, and before the premises were convey-ually or as administrator; that the defended, and in accordance with this understand- ants be restrained from taking out an exing, the orator indorsed $100 on the writing. ecution on the judgment heretofore rendered The $300 was to be paid in annual installments of not less than $50, without interest, and the loan above mentioned was to be treated as the first payment thereon, and such payment was to be treated as rent if no further payments were made, and defendant Frank was to pay the taxes and insurance. On the 10th day of February, 1906, when only $65 had been paid on the purchase price, Abraham Campbell executed to defendants Frank and Rosa as joint tenants, for an expressed consideration of $400, a warranty deed of the premises, with full in the county court until the final determination of the orator's claim in this proceeding, in order that there may be a setoff of one claim or judgment against the other, and a decree for any balance there may be in favor of either party. The answer asserts that the orator's claim for rent or purchase money was a proper matter of set-off in the suit for breach of covenant, that the orator claimed in the hearing had therein the benefit of a set-off to the extent of reducing the assessment to nominal damages, and that the judgment in that suit is final and conclusive on the ora- not determine this issue. In a suit for a tor as to the merits of his claim. It appears different cause of action, the former judgfrom the master's report that the orator's ment is conclusive only of such matters as counsel urged in argument before the clerk were actually determined. Tudor v. Kennett, that if it should be found that the plaintiffs 87 Vt. 99, 88 Atl. 520. had paid no more than the $65, only nominal damages should be assessed. Before execution issued in the suit at law the attorneys of the plaintiffs therein filed an attorney's lien and an assignment of the judgment to them, and gave notice thereof to defendants' attorney. At the hearing before the master, previous to the introduction of any evidence, defendants' solicitors, the attorneys above mentioned, objected to any hearing or the taking of any testimony until the orator should, by proper application to the chancellor, bring them in as parties defendant to the bill, claiming that the judgment at law had been assigned to them for a valuable consideration, and that a notice of the assignment had been given to the orator, before the bringing of the bill, demanding that the assignees be made parties and that a stay of proceedings be asked for by the orator and granted by the court for that purpose. The orator not acceding to this demand, the master adjourned the hearing to permit an application to the chancellor in that behalf. The defendants there upon filed with the clerk a motion to dissolve the injunction, supported by affidavit, and brought the matter to hearing before the chancellor, who dismissed the motion and directed that the hearing before the master proceed. [1, 2] The claim of the defendants regarding the effect of the judgment at law is not tenable. It was not necessary for the defendant in that suit to appear and plead in order to save his claim in offset. His default established nothing beyond the material allegations of the declaration. The matter of a breach of covenant could be determined without touching the question of the defendant's right to receive rent. It was said by Chief Justice Chipman in Barney v. Goff, 1 D. Chip. 304, that a judgment is conclusive as to everything which might have been pleaded or given in evidence in defense, or to lessen the damages, except that which may be pleaded in offset. The reason of the exception is stated in Davenport v. Hubbard, 46 Vt. 200, 206, 14 Am. Rep. 620, where it is said that a plea in offset sets up an independent cause of action, which may be used as a defense or not, at the pleasure of the defendant. See, also, Carver v. Adams, 38 Vt. 500. [3] But the defendants contend that the defendant in that suit put this matter in issue by introducing evidence tending to establish his right to receive rent, and claiming that the recovery should be confined to nominal damages because of that right. But the master has distinctly reported, with a [4-6] The defendants claim that there can be no decree because of the failure of the court to have the assignees of the judgment brought in as parties. The nonjoinder of the assignees as parties defendant is not referred to in the answer, and the failure to make the objection there will preclude its being made on the hearing, if a decree can be made which will secure the rights of all the parties in interest. Smith v. Bartholemew, 42 Vt. 356. The defendants are right in saying that the interests of assignees will be protected both at law and in equity; but they are protected at law in cases where the suit is necessarily in the name of the assignor, and the powers of a court of equity in this behalf cannot be less. The orator's claim relates solely to equities which existed before the assignment was made. An assignment of a nonnegotiable chose in action will not prevent a defendant from offsetting demands against the plaintiff of record which were mature and actionable previous to the assignment. Walker v. Sargeant, 14 Vt. 247. The suggestion that, if the assignee is not made a party, his interest may suffer from a failure to properly present the claim upon which it depends, is not applicable here. The assignees in this instance are the solicitors of the defendants and their attorneys in the suits at law which the orator seeks to enjoin. They are defending the suit for the assignor, and in doing this are maintaining their own rights. The orator's failure to establish his ownership of the property gives rise to some questions regarding his right to maintain the bill. It is argued that such equities as there may have been affecting the suit for breach of covenant were in favor of the estate, and not in favor of the orator individually, and that the estate was under no liability for the damages resulting from the breach; that the only interest the orator individually has in this equity suit is to have the judgment at law enjoined, and that his only interest in it as administrator is to recover the rent as an asset of the estate, and that for this his remedy at law is adequate. These claims call for an inquiry as to the legal status of the orator's deed. [7] The husband of a woman who dies fntestate leaving issue becomes the owner in fee of one-third in value of her real estate held in fee simple, subject to the payment of her debts and administration expenses in default of sufficient personalty, and is entitled to have such interest severed and set out to him; but the administrator is entitled to the possession of it as long as is necessary for the purposes of this liquidation. Subject to conveyance of his share at any time. See Austin v. Bailey, 37 Vt. 219, 86 Am. Dec. 703. Nothing appears here regarding debts, but as the case stands this is not likely to be important. The orator individually cannot assert the existence of debts to avoid his deed. The defendants are not seeking to avoid the deed, but stand upon its covenants. As against creditors of the estate, the orator's deed is void for want of authority to convey. As against the heirs it is valid as to one third. [8] It appears, then, that the orator, while failing to establish his right as set up in the bill, presents allegations and findings which show him to have been the owner of an undivided third of the premises claimed, and that the title to this third, subject to the contingencies regarding debts and expenses, passed to the defendants upon the delivery of the orator's deed. The defendant Rosa also owned one undivided eighth of the remaining two-thirds as tenant in common with the other heirs. But the defendants took possession of the premises under the orator's deed, and not in the right of the defendant Rosa; and they have since taken a judgment against the orator for a breach of covenant as to the entire estate. before the defendants were entitled to it under the terms of the contract. In fact, no claim is made but that the defendants are under a legal liability to pay rent. The orator is not precluded from asserting his right to a share of the rents by the judgment against him on his covenants. As regards the recovery of rents, this proceeding is for a cause of action which was expressly excluded from the determination in the former adjudication. If the orator is concluded upon this point, it must be because of the adjudication in the former suit of some fact or question material and controlling in both suits. The judgment in the covenant suit was an adjudication that the orator had no title, but this did not necessarily determine that he had no right to receive rent. So, as regards this question, the orator can stand upon his actual right as now established, notwithstanding the judgment suffered by default. [10] The bill alleges that the judgment against the orator is the only asset of the defendant, and that the orator's claim for rent will be a total loss unless there can be a set-off of counterclaims. The master finds that the defendants have no attachable property other than such interest as they may have in these premises. The recovery of rent being partly in the right of the orator individually, there is a basis for a set-off of counterclaims, and therein a ground for the exercise of equitable jurisdiction. [11] The rights of the estate and the title of the heirs to two undivided thirds of the premises were in no way affected by the orator's conveyance, and the judgment recovered by the defendants in the covenant suit bears upon the case only as regards the orator individually. The orator's deed trans The judgment obtained on default in the suit at law conclusively determined that there was a breach of the orator's covenant for which the plaintiffs were entitled to some damages. When the damages were ascertained and entered, the judgment became conclusive on both parties as to the amount of the damage. The consideration received by the orator and its character as purchase money were conclusively determined, for it became the measure of the damages. And the allowance of full damages for a breach of the covenant of seisin implies the ascertain-ferred to the defendants the title to one unment of an entire failure of the title. The adjudication has now passed into a judgment in an action of debt brought on the judgment in the covenant suit, and from this judgment an appeal has been taken and entered. This leaves the validity of the first judgment unimpaired, and the bill in no way attacks its validity. So the only part of the controversy which remains undetermined is that regarding the rent. [9] The master finds that the fair rental value of the premises was $4 a month, and charges the defendants with rent at that rate from the time they took possession, if the court considers that the orator is entitled to rent. The master has found in terms that the contract provided that the payment of $50 made on the purchase price should be treated as rent if no further payments were made. This clearly implies an understanding that, if the agreement as to the purchase price should not be carried out, the defendants should be liable for rent. We think the orator's right to rely on this understanding was not affected by the giving of the deed divided third of the property, subject to the contingencies attending the settlement of the estate, but the defendants have taken, and are seeking to collect, a judgment covering damages allowed on the theory of a complete failure of title It is obvious that the defendants cannot have damages for an entire breach of the covenant of seisin, and hold one-third of the premises by virtue of the conveyance. When their judgment is satisfied, either by direct payment or by set-off, the defendants' right in the property as grantees of the orator will cease, and the title will stand as it did before the orator's deed was given, notwithstanding the record of the deed. [12] The effect upon the title of a judgment for breach of covenant has been found by the courts to be a subject of some difficulty, and this has resulted in some diversity as regards both theory and procedure. It is said that, if a covenantee recover and receive satisfaction in damages equal to the purchase money and interest, his covenantor is thereby remitted to his right and title as |