connecting spring No. 3, so called, so far as the [6. MORTGAGES 375, 378 FORECLOSURE same can be removed without material injury to the property of the defendant or the aqueduct. Let the injunction be modified accordingly. And, so altered, the decree is affirmed. The cause is remanded. (94 Vt. 70) TRASK V. KARRICK et al. (No. 187.) (Supreme Court of Vermont. Chittenden. Jan. 19, 1920.) SALE NOT CANCELING DEBT; HOLDER OF NOTE Under a mortgage giving holder of note power to sell property upon default of any part of its conditions, a sale prior to the maturity of the note did not cancel the note, and the holder was entitled to sue for a deficiency upon maturity of the note. 7. MORTGAGES 375-RIGHT TO SUE FOR DE FICIENCY GOVERNED BY LEX LOCI. The lex loci is controlling on whether or not the holder of a note secured by a mortgage is entitled to sue for a deficiency after foreclosure. Exceptions from Chittenden County Court; 1. LIMITATION OF ACTIONS 87(4)-"RESI- Leighton P. Slack, Judge. DENTS" DEFINED. The word "residents" in the last clause of G. L. 1862, providing that such section shall not extend to a cause of action accruing in another state or government when the parties thereto at the time of the accruing of such cause of action are residents of such other state or government, means persons having such a residence in another state at the date of the accrual of a cause of action that service of process could be then had upon them in such foreign state. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Resident.] 2. LIMITATION OF ACTIONS 199 (1)—MATTER OF RESIDENCE A QUESTION OF LAW. Facts being shown, the question as to whether or not a person was a "resident" within the meaning of G. L. 1862, at the time of the accrual of a cause of action, was a question of law for the court. 3. LIMITATION OF ACTIONS 84 (3)-ABSENCE The provision of G. L. 1862, that, if a person is out of the state when a personal cause of action accrues against him, he may be sued thereon within the statutory period after his return applies to extend the period for bringing action only to cases of absence from Vermont, and absence of the debtor from a foreign state where the cause of action accrued is not sufficient. POWERS, J. The plaintiff seeks a recovery on two promissory notes. These were executed in Massachusetts, and were secured by a mortgage of real property in that state. They are dated April 2, 1894. One is for $5,000, and is payable October 1, 1894, with interest at 5 per cent. The other is for $20,000, and is payable in or within 2 years from April 1, 1894, with semiannual interest at 5 per cent. Both appear to be witnessed by James R. Carret, but, as will appear, the question whether they are to be regarded as witnessed notes is, as the case works out, immaterial. Interest was paid on these notes to October 1, 1894, since which time nothing except the avails of the foreclosure sale, hereinafter referred to, has been paid on either. The defense mainly relied upon is 4. REFERENCE 99 (3)—REFEREE'S FINDING the statute of limitations. AS TO CONSTRUCTION OF MORTGAGE INCONCLUSIVE AS MERE LEGAL CONCLUSION. The construction of a mortgage, being a question of law for the court alone, a finding by a referee thereon, being a mere legal conclusion, is not binding. 5. LIMITATION OF ACTIONS 48 (7)-MATURITY OF NOTE NOT ACCELERATED BY SALE UN DER MORTGAGE. A mortgage merely providing that upon de fault of any part of its conditions the holder of the note might sell the premises at public auction did not affect the maturity of the note, and a sale of the property under such power did not mature the note so as to start the running of the statute of limitations. In the court below, the case was sent out to a referee, and when his report came in it was subject to one exception taken by the defendant Henrietta B. This was overruled, and judgment was rendered for the defendant James L. to recover his costs, and against the defendant Henrietta B. for the amount unpaid by the sale referred to, with interest and costs. The defendants are hus band and wife, and the latter will be hereinafter spoken of as the defendant. When these notes were given all the parties thereto resided in Massachusetts; and at all times here material, the holder has resided there. But the Karricks removed from that state (108 A.) after the notes were given, and, as we shall held that they might avail the plaintiff in a see, it becomes important to determine when suit in New York, but they were not suffithey ceased to be residents of that state. cient here. The referee regarded the question of residence as a mixed question of law and fact, and, having found the pertinent facts, submitted the question to the court. The defendant insisted that it was a question of fact, merely, and excepted to his failure to find and report it as such. [1, 2] The terms "residence" and "resident" are used in various senses. We are here concerned, however, only with the meaning of the latter term as used in the last clause of G. L. 1862. The phrase "is absent from and resides out of the state," contained in the second clause of that section, was defined in Hackett v. Kendall, 23 Vt. 275, and its meaning shown to be such that if one leaves the state of his usual residence the question whether a change of residence is thereby effected depends upon whether his abode in that state is so broken up that it would not be competent to serve process upon him by leaving a copy there. This is in harmony with the holdings in Massachusetts. Langdon v. Doud, 6 Allen (Mass.) 423, 83 Am. Dec. 641. This is just what is involved in the use of the word "residents" in the last clause of the section. The parties referred to therein must have in the state where the cause of action accrued such a residence that legal service of process could have been made upon them. A determination of this involves a question of law. When the facts are admitted or proved, it is for the court to say whether the parties were residents of the state referred to. The defendant's exception to the report was properly overruled. Wells, Law and Fact, § 125; Pennsylvania v. Ravenel, 21 How. 110, 16 L. Ed. 33. The defendant excepted to the judgment against her. She specified two grounds of exception, but, as we understand the record, her only claim was that judgment ought to have been in her favor. [3] The parties agree that so far as their rights depend upon the statute of limitations they are to be determined by the law of this state; and it was so held in Sisson v. Niles, 64 Vt. 449, 24 Atl. 992. It is provided in G. L. 1862, that, if a person is out of this state when a cause of action like this accrues against him, he may be sued thereon at any time within the statutory period after his return. And it was held in the case last cited that the provisions of this section apply only to absence from this state. In that case, a plaintiff who, at the time the cause of action arose and until suit brought resided in New York, sued in our courts on a cause of action which accrued in that state. The defendant had not, since the cause of action arose, resided in New York, or had known property there. These facts were relied upon to avoid a plea of the statute of limitations. It was G. L. 1862, however, does not apply when the cause of action accrues in another state while the parties thereto are residents of that state. The causes of action involved in this suit accrued in the state of Massachusetts. The defendant was not in this state at that time. So it is necessary (the holder of the notes being a resident of Massachusetts at that time) to ascertain whether the defendant was a resident of Massachusetts when the causes of action arose. For to bring the case within the last clause of G. L. 1862, the parties must then have been residents of the state wherein the cause of action arose. Troll v. Hanauer, 57 Vt. 139. This is the vital question in the case. For if G. L. 1862, applies, neither of the notes has outlawed, because the defendant has always been "out of" this state, and there is nothing to show that she came into it within the meaning of the statute even six years before this suit was brought on October 3, 1912. On the other hand, if G. L. 1862, does not apply, the defendant's absence from this state does not stay the running of the statute, and both notes have outlawed, regardless of the question whether they are witnessed notes or not; for there is more than 14 years between April 1, 1896-the latest possible date of maturity-and the date of the writ. [4] The smaller note fell due October 1, 1894, a time when, without question, the parties to it all resided in Massachusetts. Therefore G. L. 1862, has no application to it, and the statute had run on it when this suit was brought. The larger note fell due on April 1, 1896, unless its maturity was accelerated by the clause in the mortgage providing for a foreclosure sale. No acceleration clause was contained in the note. The referee finds that the makers of the note defaulted the interest due April 1, 1895, and that under the terms of the mortgage, both principal and interest thereupon became due. The plaintiff says that this is a mere legal conclusion, based upon an erroneous construction of the terms of the mortgage, which does not bind him. To this we agree. Whether the maturity of the note was so accelerated as to start the statute of limitations running depends upon a construction of the mortgage, which was for the court alone; and therefore the finding is without force. Deavitt v. Hooker, 73 Vt. 143, 50 Atl. 800. [5] The mortgage is referred to and made a part of the referee's report, and from it, it appears that the clause in question merely provides that upon default of any part of its conditions the holder might sell the premises at public auction. Nothing is said about the maturity of the notes. The provision relates wholly to the handling of the security. So | a brief visit there. The foreclosure sale was Since then the defendant has had no property in Massachusetts. Mr. Karrick continued to own some equities in real estate there until "the early part" of 1896, but this could not affect the defendant's standing. On April 1, 1896, the defendant had neither abode or property in Massachusetts. Suppose the plaintiff had attempted to bring suit against her at that time, how could he get service upon her in Massachusetts? Where could he leave a copy of the writ for her? The answer is apparent. There was no way to get service upon her there. She had ceased to be a resident of Massachusetts. It follows that G. L. 1862, does apply to the larger note, and that the defendant's absence from this state prevents the running of the statute. It remains to determine whether the defendant was, on that date, a resident of Massachusetts. We may assume-for that is to give the defendant all that the findings warrant-that the defendant was a resident of [6, 7] The defendant's claim that by a that state until October, 1895. At that time proper construction of this mortgage the the family dwelling was closed, and had been foreclosure sale, in effect, canceled the notes since the February before. Mr. Karrick's is without merit. The parties did not so health was such that he could not live in agree. The general rule is that under such Massachusetts. He was in and about Boston mortgages, the holder is entitled to sue for during that summer, but in October he gave the deficiency (19 R. C. L. 665), and, the lex up his office, stored his furniture in his house loci being controlling, such is unquestionably on Dudley street, and went back to Colorado. the law of Massachusetts. See Draper v. At or about the same time the defendant Mann, 117 Mass. 439; Stone v. Haskell, 212 went to Texas. Neither returned to Massa-Mass. 283, 98 N. E. 1032. chusetts to stay, though the defendant made Judgment affirmed. (118 Me. 454) MOODY V. MOODY. (Supreme Judicial Court of Maine. 1920.) (108 A.) to the libelant therefor. Upon the conclusion of the evidence counsel for the libelee requested the presiding justice to direct a Feb. 9, verdict for the libelee upon each of the allegations contained in the libel, and now has exceptions to the refusal so to do. 1. DIVORCE 37 (1)-MEANING OF "UTTER DESERTION" AS CAUSE FOR DIVORCE; “UTTER." We need only consider the exception to the refusal to direct a verdict for the libelee The word "utter," in Pub. Laws 1883, c. upon the issue of desertion. The libel alleges 212, providing that utter desertion continued "that on the 26th day of December, A. D. for three consecutive years next prior to filing 1912, said libelee utterly deserted your libelof the libel is a ground for divorce, was used ant without reasonable cause, and has conin its ordinary acceptation of entire and com-tinued said desertion for three consecutive plete, absolute and total; utter desertion in-years next prior to the filing of this libel.” volving an abnegation of all duties and obligations resulting from the marriage contract. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Utter; First Series, Utterly Desert.] 2. DIVORCE DESERTION. 37(1)-ESSENTIAL ELEMENTS OF To establish desertion of one spouse by the other three things must concur and be proved, first, cessation from cohabitation for the statutory period, intention in the mind of the deserter not to resume cohabitation, and absence of the other spouse's consent to the separation. 3. DIVORCE 37 (7)-CONTINUITY OF DESERTION BY WIFE BROKEN BY FILING OF LIBEL BY HUSBAND FOR CRUELTY. Where a husband whose wife had deserted him in 1912 filed and served upon her in 1913 a libel for divorce charging cruelty, he thereby acquiesced in the desertion, and cannot subsequently, on libel filed in 1918, secure divorce as for a three-year utter desertion under Public Laws 1883, c. 212, in the absence of a showing of restoration of continuity of desertion broken by such acquiescence. It appears that before filing the present libel the libelant had filed two earlier libels. The was dated January 21, 1913, was returnable first, alleging cruel and abusive treatment, at the April term, 1913, of this court in Cumberland county, came on for hearing at the January term, 1914, and was then dismissed by consent and without prejudice. The second, alleging extreme cruelty, cruel and abusive treatment, and utter desertion, continued for three consecutive years next prior to the filing of the libel, was dated December 6, 1917, was returnable at the January term, 1918, of the superior court for Cumberland county, came on for hearing at the May term, 1918, and was dismissed without prejudice. The libelee's prayer for divorce, inserted in her answer, was denied. It further appeared by the testimony of the libelant at the trial of the present case that during the former trial in the superior court a conference was held in the judge's chambers with a view to a reconciliation of the parties. At that time the libelant was asked, in substance, whether or not he would take Exceptions from Superior Court, Cumber- back his wife to live with him. To this ques land County. Libel for divorce by Frank M. Moody against Mary A. Eggert Moody. Finding for libelant on the allegation of desertion, and libelee excepts. Exception sustained. Argued before CORNISH, C. J., and HANSON, PHILBROOK, MORRILL, DUNN, and DEASY, JJ. tion he replied, "No; distinctly no." The libelant substantially repeated this testimony on redirect examination. On July 3, 1918, the libelee wrote the libelant a letter in which she said: "I am hoping and praying that you will some day take me back to live with you in our own home. *** I will gladly come at any time, Henry Cleaves Sullivan, of Portland, for and am very sure that if you and I can only start libelant. Frank H. Haskell, of Portland, for libelee. new we can forget all the unpleasant past and be to each other all we once were, and Frank won't you please answer this letter just as soon as you get it and give me my answer. I can't help hoping you will send for me, and I am waiting for your reply." To this letter the libelant did not return an answer. MORRILL, J. This libel for divorce is dated October 10, 1918, and was heard be fore a jury in the superior court of Cumberland county at the April term, 1919. The alleged causes of divorce are extreme cruelty, cruel and abusive treatment, and utter de- Upon these admitted facts we are of the sertion for three consecutive years next prior opinion that the requested instruction should to the filing of the libel. Upon the issues of have been given, and that a divorce should extreme cruelty and cruel and abusive treat-not be granted for the cause of desertion. ment the jury found for the libelee; upon the issue of desertion the jury found that the allegation was true, and that a divorce from the bonds of matrimony ought to be granted [1] "Utter desertion, continued for three consecutive years next prior to the filing of the libel," was made a ground for divorce by Public Laws of 1883, c. 212. We apprehend For other cases see same topic and KEY-NUMBER in all Numbered Digests and Indexes that the word "utter" is used in its ordinary shown by his overt act in filing the former acceptation, "entire and complete, absolute, libel and causing it to be served, is substantotal." Utter desertion involves "an abnega- tiated by his positive statement to the trial tion of all the duties and obligations result-judge that he would not take back his wife to ing from the marriage contract." Southwick live with him, and by his neglect to reply v. Southwick, 97 Mass. 327, 93 Am. Dec 95; to her letter of July 3d. Stewart v. Stewart, 78 Me. 548, 7 Atl. 473, 57 Am. St. Rep. 822. [2] To establish desertion three things must concur and must be proved. These are cessation from cohabitation continued for the statutory period, intention in the mind of the deserter not to resume cohabitation, and. the absence of the other party's consent to the separation. The authorities are collected in the notes to Pfannebecker v. Pfannebecker (Iowa) 119 Am. St. Rep. 618, and Hudson v. Hudson (Fla.) 138 Am. St. Rep. 146. The dismissal of the former libel without prejudice does not change the situation. The former proceedings could not be pleaded in bar to the maintenance of this libel; but the continuity of the desertion which had been broken was not thereby restored. The desertion for the required period must continue to the date of filing the libel. Upon the undisputed facts it must be held as a matter of law that a divorce cannot be granted for the cause of utter desertion continued for three consecutive years next prior to the filing of the libel. Ford v. Ford, supra ; Najjar v. Najjar, 227 Mass. 450, 116 N. E. 808. Exceptions sustained. LYNAM v. HARVEY et al. (Court of Chancery of Delaware. Oct. 4, 1919.) If the absence is assented to by the party claiming to be deserted, it does not constitute desertion within the meaning of the law. The word "desertion" imports that the absence is without the consent of the party deserted. A desertion consented to is not a desertion. Lea v. Lea, 8 Allen (Mass.) 418; Ford v. Ford, 143 Mass. 577, 10 N. E. 474. "But," as said by Mr. Justice Holmes in the case last cited, "we apprehend that 'without the consent' means without the manifested consent, and that the undisclosed emotions of 1. VENDOR AND PURCHASER 63-DESCRIPthe deserted party do not affect his rights. So, when a wife leaves her husband, he may be glad to be rid of her, but may stand upon his rights and give her a home as long as she will accept it. Of course, proof that he entertained the feelings supposed might make it hard to believe that he did not show them, and thus express his consent to the separation; for the consent can be expressed by conduct as well as by words." * TION OF NAMED FARM SUFFICIENT. A written agreement providing that the purchaser should have the "Jesse Chandler farm at Granogue Delaware," for a specified sum at the vendor's death, held valid and enforceable. 2. WITNESSES 130- INCOMPETENCY IN IN TERPLEADER ACTION BY EXECUTOR. In an interpleader suit by an executor, a party seeking damages for the testator's breach of contract to convey, land cannot testify as to statements by the testator; such proceeding being within the statute providing that, in actions by or against executors in which judgment may be rendered for or against them, neither party can testify as to statements by the testator, etc. 3. WITNESSES 140(9) WIFE OF PARTY SEEKING DAMAGES FOR TESTATOR'S BREACH OF CONTRACT IS COMPETENT. [3] When the libelant filed his former libel in the superior court and caused service to be made on the libelee, his act necessarily and conclusively imported an intention not to live with her. The absence of the libelee, if previous to that time it had been without his consent, was so no longer. "Assent, in the sense of the law, is a matter of overt acts, not of inward unanimity of motives, design, or the interpretation of words." O'Donnell The wife of a party seeking to recover v. Clinton, 145 Mass. 461, 463, 14 N. E. 747, damages for a testator's breach of contract 751. He might have felt justified in his ac- may testify regarding statements made by the tion by the acts of cruelty and cruel and abu-testator, where she was one of his residuary sive treatment which he alleged against his wife; but the desertion was at an end; the absence of the wife did not constitute desertion, although the assent might have been justified. He, in effect, said to her that in the past he had overlooked her acts of cruelty and abusive treatment, and wished her to come back, but that now he was unwilling for her to return, and claimed his right to a decree of divorce. legatees, since her interest was opposed to her husband's and she was within the exception to the statute providing that in actions against executors neither party can testify regarding the testator's statements. 4. FRAUDS, STATUTE OF 56(2) VENDOR'S ORAL ADMISSION OF VENDEE'S RIGHTS UNDER WRITTEN CONTRACT ADMISSIBLE. A vendor's oral admission that the purchaser had certain rights under a written contract of sale is not inadmissible under the statIn this case the assent of the libelant, as ute of frauds, Rev. Codes 1915, § 2626, since |