The defendants rely upon the rights of the Grand Isle County Grange in justification of their refusal to deliver up the piano.

[2] As has been seen, the grange came into possession of the piano under an arrangement with Griswold, its caretaker, for its use until wanted by the school. At the time the demand for its return was made the school had been reopened, so that the time for its return under this agreement had arrived, and the grange had no right thereunder to retain it longer. If the grange or its officers can justify the retention, it is because acting in the right and under direction of Parker.

The grange removed the piano to their new hall and continued to use it there with the consent of Parker and the private school committee. In the fall of 1912 the town reestablished a public school in the school building and in March, 1913, the school di

rectors of the town of Grand Isle served notice in writing on defendant McGowan, as master of the grange, to return the piano to the school building within 12 days. McGowan was then master of said grange, and, as such, was its presiding officer, and had general charge and custody of all the property

thereof. Defendant Gordon was the janitor

and caretaker of the grange building and had the custody of the keys. McGowan called the matter of the notice to the attention of the grange in open meeting, and thereupon the grange voted not to return the piano. Acting under the authority of this vote, and under the direction of Parker, who claimed an interest in the piano because of the payments advanced by him, the defendants refused to return the piano, and retained the same in the grange hall in the control of the grange until the service of this writ. The only interest that the defendants ever had or claimed in the piano was because of the fact that they were officials of the grange. February 24, 1913, Miss Woodworth assigned to the town of Grand Isle her right, title, and interest in the piano. Before bringing this suit the town was given a statement of Parker's claimed interest in the piano, and was aware that the grange was holding and using it under a license from Parker. The plaintiff claims title to the piano by virtue of the assignment from Miss Woodworth, and the defendants seek to justify under the rights of the Grand Isle County Grange.

[1] Under the contract with Cluett & Sons, Miss Woodworth was to receive a bill of sale of the piano upon payment of the sum fixed as rent, with interest thereon. Although in form a lease, in law the agreement amounted to a conditional sale. Nye v. Daniels, 75 Vt.

[3] It is argued that the transaction between Parker and Cluett & Sons amounted to a sale by the latter of their interest in the piano, and that Parker was entitled to its possession until the terms of the contract had been complied with. While Parker might have purchased the conditional vendor's interest in the piano, and thus have acquired security for his advancement, this claim is not supported by the facts found. Parker advanced the money for the purpose of paying up the claim of Cluett & Sons. No agreement, express or implied, for an assignment of the claim is found, and the inference in support of the judgment below is against the contention now made. Nor can the argument that Parker was subrogated to the rights of the conditional vendor be sustained. No agreement of subrogation is found. In the absence of such an agreement, that the person making the payment be one it is essential to the right of subrogation who is under some obligation regarding it, or who has some interest to be protected by it. Payment by Parker, even if the remark of Miss Woodworth to him is treated as a request that he pay, would not, in the circumstances of this case, entitle him to subrogation, in the absence of an understanding to that effect. Davis et al. v. Davis et al., 81 Vt. 259, 264, 69 Atl. 876, 130 Am. St. Rep. 1035; National Bank of Royalton v. Cushing et al., 53 Vt. 321, 326; Sheldon on Sub. (2d Ed.) § 240.

[4] Neither can the claim that Parker succeeded to the rights of Miss Woodworth be sustained. The defendants contend that Parker took her rights in two ways: (1) Through Parks and Griswold; (2) from Miss Woodworth herself at the time Parker had the talk with her in which she said she did not care who took up the note. Conceding, as the defendants argue, that Miss Woodworth then had an assignable interest in the piano, the findings do not afford a basis for the claim of an assignment; and here, again, the inference in support of the judgment is against their contention.

Nor does the law of estoppel apply. If the other elements of an estoppel are treated as made out, there is no finding that Parker advanced the money to save the piano for

[5] The defendants argue that the action is barred by the statute of limitations, as "more than six years had elapsed between the time Miss Woodworth gave up her interest in the piano and the time when she undertook to assign an interest therein to the town." Assuming, but not deciding, that this defense would be available under the general issue, on the facts found the cause of action did not accrue until the demand for the return of the piano made in March, 1913, shortly before this suit was brought.

[6] It remains to consider whether the plaintiff can maintain the action. Its right to the possession of the piano depends upon the assignment from Miss Woodworth. By the terms of this writing she attempted to transfer to the plaintiff, as school property of the town, all her right, title, and interest in the piano. The defendants concede that her connection with the piano transaction is that of a trustee; that her trust was to receive money from the school and other sources, pay for the piano, and hold it for the benefit of the particular school for which it was bought. They contend that Miss Woodworth abandoned the trust: (1) By turning the papers relating to the piano over to Parks; and (2) by her dealings with Parker. The argument is that, having abandoned her trusteeship, she could not, in the way she did, make the town a trustee. It seems clear that Miss Woodworth assumed the relation of trustee when she entered into the contract with Cluett & Sons. She took possession of the piano under the contract in trust for the school-a trust in its nature public or charitable. 39 Cyc. 32, 70; 2 Pom. Eq. Jur. § 987; Wade v. Button, 72 Vt. 136, 47 Atl. 406.

argument carries the implication that she might transfer her rights if not abandoned The legal title to the piano, or at least an assignable interest therein, being in Miss Woodworth when she executed the writing of February 24, 1913, the effect of that writing was to transfer such title or interest to the plaintiff in trust for the school. The defendants, or those in whose right they defend, being strangers to the trust, cannot be heard to question her right to transfer her interest in the piano. See Capen's Adm'r v. Sheldon et al., 78 Vt. 39, 47, 61 Atl. 864; Mitchell et al. v. Stevens, 1 Aikens, 16, 23. Upon acquiring this interest the plaintiff was entitled to the possession of the piano as against the defendants, and so could maintain this action. Judgment affirmed.

MILLER v. MILLER. (Supreme Court of Vermont. 14, 1914.)

DIVORCE (§ 62*)—"RESIDENCE.”

(88 Vt. 134)

Orange. Oct.

The term "residence" is used in different senses, and as used in P. S. 3071, requiring a year's residence as a condition precedent to libelant's right to sue in Vermont for a divorce, means legal domicile, so that, where libelant's husband had his legal residence in Vermont, and by cruel treatment compelled her to leave him and go to Chicago, where she remained, with no intention to return to Vermont unless her husband came for her or requested her to do so, her legal domicile was still that of her husband in Vermont; and hence the fact that she had not been actually present in the state for the year preceding the filing of her libel show that she had not been a resident of the there against her husband for divorce did not state for that time within the statute.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 200-202, 208-216, 220, 282; Dec. Dig. § 62.*

For other definitions, see Words and Phrases, First and Second Series, Residence.]

Exceptions from Orange County Court; Fred M. Butler, Judge.

Action by Anabel Miller against James C. Miller. Decree for complainant, and defend. ant brings exceptions. Overruled.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

E. W. Smith, of Wells River, and Frank S. Williams, of Bradford, for petitioner. David S. Conant, of Bradford, for petitionee.

If it were possible for her to "abandon" the trust, the facts found do not support | that contention. While she ceased to be actively interested in raising money to pay for the piano when her employment as teacher of the school ceased, her liability on the contract was not terminated, and, so far as appears, the relation of trustee continued to the date of the transfer from her to the plaintiff. As conditional vendee, she had a transferrable interest in the piano. Hervey v. Dimond, 67 N. H. 342, 39 Atl. 331, 68 Am. St. Rep. 673; Dame v. Hanson & Co., 212 Mass. 124, 98 N. E. 589, 40 L. R. A. (N. S.) 873, Ann. Cas. 1913C, 329; Heyns v. Meyer, 46 Ind. App. 45, 91 N. E. 973; Fox v. Delaney (Ark.) 163 S. W. 157. Upon payment of Cluett & Sons' claim in full the legal title passed to her as trustee. This she subsequently attempted to transfer to the plaintiff. The defendants say that, as Miss Woodworth had abandoned her trust, the court of

POWERS, C. J. These parties were married at Chicago in the fall of 1911, and came at once to Newbury, Vt., to reside. They lived together there on a farm owned by the libelee and his brother until May, 1912, when, on account of the husband's cruel treatment, the libelant was compelled to leave him. She went back once for a reconciliation, but was in effect turned away by him and forbidden

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 230-232; Dec. Dig. § 91.*]

6. SPECIFIC PERFORMANCE (§ 8*)-DISCRE

TION.

The discretion as to decreeing specific performance is one governed by settled principles, a judicial discretion, so that, the contract being unobjectionable, unless some unusual condition exists, performance is to be decreed almost as matter of course.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 17, 18; Dec. Dig. § 8.*] 7. SPECIFIC PERFORMANCE (§ 105*)-LACHES. Specific performance of R.'s oral contract to convey land to P. should not be denied on the ground of laches, because P. made no effort to get a deed from R., though he lived several years thereafter, and because suit was not brought till nearly a year after R.'s death, P. being R.'s mother, and having entered and made substantial improvements and lived on the land, and there having been delay in appointing R.'s administrator, and no one being harmed by P.'s delay.

[Ed. Note.-For other cases, see Specific Per formance, Cent. Dig. §§ 325-341; Dec. Dig. § 105.*]

Appeal in Chancery, Windsor County;

Willard W. Miles, Chancellor.

ance.

appear before the master, and some of the bills are yet unpaid. Reuben bought some of the materials, the amount of which was not he had had his pay therefor. Enough apshown, and it did not appear whether or not pears to show that the oratrix made substantial improvements on the lot, and it is not shown that Reuben had any claim against her for labor or expenditures. The deed called for by the oral contract was never executed or demanded. Reuben died before this bill was brought, and his administrator is one of the defendants. The oratrix died after the bill was brought, and her executor has entered to prosecute. This suit is brought to compel specific performance of the oral agreement.

[1-3] It is not specifically found that the oratrix did her part toward the erection of the house and entered into possession thereof under and by virtue of the oral contract; but this is the obvious meaning of the report, and we so construe it. It, therefore, appears that the oratrix went into possession of the premises under an oral contract therefor, and made substantial improvements thereon. In such circumstances, equity affords a remedy

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Davis & Davis, of Windsor, for appellant. William Batchelder, of Woodstock, for appellees.

65 Vt. 200, 25 Atl. 1092; Kittredge v. Kittredge, 79 Vt. 337, 65 Atl. 89. That one of the defendants is an administrator is no embarrassment. Ryder v. Robinson, 109 Mass. 67; Smith v. Pierce, supra. The fact that it

is shown that Reuben furnished some materials for the house, and that he worked upon it, does not affect the result. By the contract he was to do some of the work, and there is no finding that he has any claim, either for services or materials.

[4] The fact that the contract proved shows an oral gift of the land instead of a sale of it does not affect the rights of the oratrix. Whitaker v. McDaniel, 113 Md. 388, 78 Atl. 1; 36 Cyc. 681.

The claim that the premises in question are a part of the homestead of Ella Gove, and that inasmuch as she had no part in the contract it was of no force, is disposed of by the finding that the remainder of Reuben's place is worth $600.

POWERS, C. J. Reuben Gove, son of the oratrix and husband of Ella Gove, one of the defendants, owned a piece of land in Norwich, on which he lived with his family. His dwelling house was on the east side of a road that ran through the land, and the house and lot here in question were on the west side of this road. Some time about the 11th of October, 1899, Reuben made an oral contract with his mother, the oratrix, by the terms of which she was to furnish the materials for, and he was to do a part of the work of, building a house on his land west of the road and north of a certain passageway, and the house and lot were to be deeded to her. Work was begun on the house that fall by Reuben and his son, and continued as long as weather permitted. Little was thereafter done on the house until one Porter did some work thereon, and furnished some materials therefor in December, 1905, and January, 1906. About this time the oratrix moved into the new house, and continued to hold possession thereof until her death in 1911. She furnished most of the materials for the house, and paid for some of the la

[5, 6] The defendants argue that, inasmuch as the findings show that there never was a demand for a deed, either on Reuben or his administrator, the suit cannot be maintained. But it appears from the answers that the defendant, Armstrong, with the approval of the other defendant, went to the house in question, the oratrix being then absent therefrom, and locked it up, and notified the oratrix to remove her personal effects therefrom, and forbade her to enter the house except for that purpose, that he intended to prevent the oratrix from occupying the house, and that he had refused to convey the place to her. If a demand is ever required