Hall v. Dewey , 10 Vt. 593 ( 1838 )

The opinion of the Court was delivered by

Royce, J.

I shall first consider the decision of the county court, excluding the ten acres in dispute from lot No. 17.

That decision was necessarily fatal to the plaintiff’s right of recovery, since his evidence of title was confined to that lot; and his actual possession at the time of the trespass complained of, if without title, could not avail him against the prior seisin and possession of Porter, under whom the defendants acted, though Porter’s possession had not ripened into a perfect title. It has long been settled in this state, that ejectment may be sustained upon a prior seizin and possessi0n of less than fifteen years standing, if not abandoned, against any one who has not a better right. And from this it results, that the party thus disseized by another, having no prior or better right, may lawfully re-enter upon the latter. ^g aga;ngt jjjm he has the ■ right of possession, and' may assert it by entry or by process of ejectment. The question then arises, was it proper for the court to decide, that the locus in quo was not a part of lot No. 17, or should the evidence have been submitted to the jury ? The evidence relating to this point was not wholly upon one side, since the plan of the town, which the case says had been made and acquiesced in for more than thirty years, showed the disputed tract to be part of No. 17. It must, therefore, have been the character of the evidence produced by the defendant, which influenced the court in making the decision. That evidence proved, — that in 1808, Cephas Smith, Jr. being agent of- Hopkins, and probably the real owner of lot No. 17, caused a survey of the lot to be made, in which the tract in question was not included ; — that a similar survey was in part made by Mattocks, the grantee of Smith, in 1819; — * and that Smith surrendered the note taken of young Pratt for the price of the ten acres, from a belief that they did not belong to lot No. 17. These facts should doubtless operate as admissions by Smith and Mattocks, whilst owners, as to the extent of their boundaries. And, though such admissions arc evidence against the party making them, and those who claim under him, and will be entitled to greater or less weight according to circumstances, they are not, in general, conclusive. In this instance it does not appear that the defendants, or those with whom they are connected, were induced to take any steps in relation to the property, upon the faith of these admissions. It is also apparent that the force of this evidence is considerably weakened by other facts appearing in the case. The first purvey was probably made in the absence of Smith, and certainly in the presence, and under the influence, of the elder Pratt, who was Ínteres, ted against him. Smith’s claims and declarations were not uniformly in support of that survey, but at times in opposition to it. The last survey was only of two lines of the lot, and the surveyor was governed in making his plan by his minutes of the former survey. In our opinion, the evidence upon this question furnished no legal conclusion either way, and it should have been left to the jury to find the fact.

The county court also decided, that the possession of Ezekiel Beebe, after his declarations made to Willis in the summer of 1832, was to be considered as adverse to Thrall, who then held the title of lot No. 17, and that Thrall’s subsequent deed to the plaintiff was, therefore, void under the statute of 1807. It appears from the case, that in answer to this part of the defence, the plaintiff offered testimony tending to prove, that Ezekiel Beebe entered into possession of the ten acres, and occupied the same, as tenant at will to John L. Beebe and William Elliot, from whom Thrall derived title. This evidence was rejected, on the ground that Thrall, in legal contemplation, was affected with notice of Ezekiel Beebe’s adverse holding; in other words, that the declarations made to Willis, the agent of Thrall, operated as notice to Thrall himself. These decisions evidently proceed-.ed on the ground, that a tenant at will, by claiming to hold in his own right, and apprising the landlord of such claim, may so far throw off’ his tenancy as to commence a possession adverse to his landlord. This doctrine, if not expressly recognized by the ancient authorities, is certainly sustained by the recent American decisions. It was the point in judgment before the Supreme Court of the United States, in Willison v. Watkins, 3 Peters’. R. 43. With the proper qualifications it is a doctrine well suited to the genius of our institutions, and to the rapidly improving condition of real estate in this country. The operation of the principle is .simply to impose upon the landlord the necessity of protecting his interest, after learning the hostile claims of his tenant, by that measure of diligence which the statute of limitations has prescribed. For other purposes, the original relation between the parties, has its legal effect upon their respective rights. The tenant is still restrained from disputing the title under which he entered, nor can he augment the burden of proof upon the other side, by denying his tenancy. And the cases of Bowker v. Walker, and Tuttle v. Reynolds, 1 Vt. R. 18 and 80, are sufficient to show, that the rights, subsisting between the original parties to such a tenancy, continue to subsist between their grantees.

Whether such an adverse holding, by a former tenant, should operate to avoid a subsequent conveyance by the landlord, or his grantee, is perhaps a new question. But since it is regarded as strictly an adverse possession, and as such, will eventually confer a title, if continued, it must have the effect which the statute has given to all such possessions.

It was held in Stevens v. Dewing, 2 Aik. R. 112, that in order to avoid a deed under the act of 1807, the evidence relied upon to prove an adverse possession should be submitted to the jury. But the case does not show, that in this instance the plaintiff insisted upon that course, nor has the point been made in argument.

Aside from this consideration, the decision of the county court, as to the character of Ezekiel Beebe’s possession, and its influence upon the plaintiff’s title, was correct. And their subsequent decision, rejecting evidence of his former tenancy, was also correct, provided the declarations to Willis, legally operated as notice to Thrall, of Beebe’s adverse claim. This is the only remaining subject of inquiry. Whether notice to an agent is at the same time notice to his principal, must depend on the character and extent of the agency. Had Willis been commissioned to receive rent of Beebe, to treat with him respecting a lease of the land, or, in short, to transact any business with him on the subject, requiring a report to be made to Thrall, the views of the county court would have been clearly right. But Willis was employed only to deliver a verbal message from Thrall, that Beebe must call upon him and make arrangements about the rent. This was a message which might as well have been sent by one person as another. It does not appear that an answer was expected through Willis, or that any report of Beebe’s declarations was ever made to Thrall. We, therefore, consider that Willis was not such an agent in this matter, that the declarations made to him can be regarded as constructive notice to Thrall.

The result is, that the evidence of Beebe’s tenancy should have been admitted. And had the tenancy been proved, the conveyance from Thrall to the plaintiff must have taken effect, and entitled the plaintiff to a verdict.

Judgment of the county court reversed, and new trial granted. ,