City of Barre v. Town of Bethel , 102 Vt. 22 ( 1929 )

By the agreed facts it appears that Henry W. Adams, on approximately August 14, 1919, acquired property in a certain restaurant in Bethel, the defendant town, and that he and his wife, Odell Adams, then, for the first time, took up their residence and commenced living in that town; that in October, same year, Henry W. exchanged his interest in said restaurant for an interest in the so-called Buck store in East Bethel, same town, the insurance policy on said store running to him from October 18, 1919, until January 14, 1920, when said interest in such store property and insurance thereon were transferred to his wife, Odell Adams, the latter holding the same until November 2, 1922; that during the period from August, 1919, to November, 1922, his said wife continuously lived in defendant town, remaining the wife of Henry W. and during the same period they were self-supporting, except as may otherwise be construed from the facts stated herein; that on approximately January 14, 1920, Henry W. had a disagreement with his said wife, and thereupon took himself to the town of Hardwick, this State, and in the latter town lived for a period of a year or so continuously, commencing on or about January 14, 1920, there living with a certain housekeeper and a certain son of his, and in the taxing time of the year 1921, said Henry W. was in that town listed for a poll tax and paid the same to said town; that thereafter Henry W. lived with and worked for said housekeeper on a certain farm in Walden, this State, and afterwards lived with and worked for her at a certain store in Calais, this State; that during the period he was then living in Hardwick, Walden, and Calais, he, at least four times, went to defendant town, and then and there on such occasions occupied the same room with his said wife, and during the period that he lived in Hardwick, Walden, and Calais, practically all the household goods and furniture previously used by him and wife remained in her possession in Bethel; that before the taxing time in the year 1922. Henry W. had returned to his wife in Bethel, and in that year was there listed for a poll tax; that the aforementioned store property in Bethel was listed to his said wife in the years 1920, 1921, and 1922; that in the last named year said store property was exchanged in part for a farm in Northfield, this State, whereto Henry W. and his said wife departed about November, 1922, never returning to the town of Bethel; that since that year Henry W. has not secured a three-year residence in any other town or city in the State of Vermont; that during the period when he was at Hardwick, Walden, and Calais, nothing appears to show that he contributed anything toward the support of his wife or any other member of his family in the town of Bethel, unless or except as said transfer of said interest in said store property to his wife on January 14, 1920, prior to his going to Hardwick, might be legally so construed; but when he returned to Bethel in 1922, he brought back with him $100 which was thereafterwards commingled in common with other property. It is agreed that notice sufficient in law was given by the overseer of the poor of plaintiff city to the overseer of the poor of defendant town before the commencement of this action.

WATSON, C.J.

This case stands on an agreed statement of facts. It is said inMathie v. Hancock, 78 Vt. 414, 63 A. 143, and in ChittendenCounty Trust Co. v. Hurd, Jr. et al., 93 Vt. 71, 106 A. 564, and in City of Barre v. Barre Chelsea R.R. Co., 97 Vt. 398,123 A. 427, 37 A.L.R. 207, that in such circumstances the case must be determined on the facts appearing as so established, for no inference can be drawn by the court from any of such facts. Lest the legal effect of the rule as stated above may be misunderstood, we state it with greater precision in Hooper,Trustee v. Kennedy, 100 Vt. 314, 137 A. 194, where it is given in substance that when the facts are agreed, such facts and the necessary inferences from such facts may be drawn, or considered. This is so for the necessary inferences are, in legal effect, a part of the facts agreed. To this effect is Old Colony R.R. Co. v. Wilder, 137 Mass. 536, 538.

It appears from the agreed facts that Henry W. Adams acquired property in a certain restaurant in defendant town on approximately August 14, 1919, and that he and his wife, Odell Adams, then, for the first time became residents of that town and commenced living therein. Later in the year 1919 he exchanged his interest in said property for an interest in the so-called Buck store in East Bethel Village, in the same town, in which town he continued to reside. The residence of Henry W. Adams, having been established in the town of Bethel on approximately August 14, 1919, the presumption is that it continued to be at the same place until a change was shown, and the burden was on the party asserting such change to prove it.Sowles v. Carr, 69 Vt. 414, 38 A. 77; Rixford v. Miller et al.,49 Vt. 319; State, ex rel. Phelps v. Jackson, 79 Vt. 504, 65 A. 657, 8 L.R.A. (N.S.) 1245; Mitchell v. United States, 88 U.S. (21 Wall.) 350, 22 L. ed. 584; 9 R.C.L. 567. The fact that on January 14, 1920, the same day on which he had a disagreement with his wife, he transferred to her his interest in said store property and the insurance thereon, which interest and insurance she held until November 2, 1922, all the time continuously living in that town and remaining his wife, did not operate to change the situation as to his residence. Nor, as will be seen, was any such change in the situation caused by the fact that upon such transfer, he took himself to the town of Hardwick, Vermont, wherein he lived for a portion of a year or so continuously, commencing on or about January 14, 1920, there living with a certain housekeeper and a certain son of his own, and in taxing time of the year 1921, being listed in Hardwick for a poll tax which he afterwards paid, thereafterwards living with and working for said housekeeper on a certain farm in Walden, this State, and afterwards living with and working for her at a certain store in Calais, this State. For the agreed facts do not show any intention on his part to make a permanent removal from Bethel at the time he "took himself to the town of Hardwick," as therein stated. There cannot be a permanent change of domicile without the fact of removal and the intent concur. Mount Holly v.Plymouth, 89 Vt. 301, 95 A. 572; Town of Glover v. Town ofGreensboro, 92 Vt. 34, 101 A. 1016. The fact that in 1921 Henry W. "was listed in said Hardwick for a poll tax and paid the same" to that town, is not conclusive of a permanent change. For aught that appears, he may have been so listed without any act or knowledge of his, and later paid the tax to avoid trouble. Moreover, within the period of two years or a little more when living at Hardwick, Walden, and Calais, he went back to his home in Bethel at least four times and then and there on such occasions occupied the same room with his wife. During the same period practically all the household goods and furniture previously used by him and his wife remained in her possession in Bethel. He returned to his wife in Bethel before taxing time in the year 1922, and was there listed for a poll tax. He carried back to Bethel $100 which was thereafterwards commingled in common with other property, he, himself, there remaining with her until the said store property by him transferred to her, as stated above, was exchanged in part for a farm in Northfield, whereto they together departed about November, 1922, never returning to Bethel.

It is contended in behalf of defendant that during the time Henry W. was in Hardwick, Walden and Calais, he never contributed any support to his wife or family in Bethel. The agreed facts, however, do not bear out this contention. He was the owner of the store property transferred by him to his wife before going to Hardwick, and after such transfer he had at least a freehold interest therein by virtue of his marital rights, it not being her separate property. Dietrich v. Hutchinson, 73 Vt. 134, 50 A. 810, 87 A.S.R. 698; Laird, Assignee v. Perry, 74 Vt. 454, 52 A. 1040, 59 L.R.A. 340.

Such freehold interest therein was not taken away by No. 90, Acts of 1919. Of what the store property consisted, or the annual income therefrom, the agreed facts do not show. We therefore cannot say that the income therefrom was not enough to support the wife. If it was, then by legal construction, the agreed facts show that during the period from August, 1919, to November, 1922, "said Henry and said Odell were self-supporting."

On the facts agreed, it seems certain that the pauper residence of Henry W. Adams was continuously, without interruption, within the meaning of the statute, in the defendant town, for the space of three years and more, commencing on approximately August 14, 1919, and ending about November, 1922, supporting himself and family; since which latter time he has not secured a three-year residence in any town or city in the State of Vermont.

Judgment reversed, and judgment for the plaintiff to recoverthe sum of $51.71 with interest from February 9, 1926, and costs.

NOTE. CHASE, J., sat at the hearing of this case, but having resigned, took no part in its disposition.