Pratt v. Battels , 28 Vt. 685 ( 1856 )

The opinion of the court was delivered by

Ishabi, J.

Several questions have been raised during the argument of this case, some of which, it is unnecessary, at present, to decide. If the plaintiff’s title to this land is sufficient to enable her to recover its possession in the action of ejectment, yet, as those under whom the defendant acted were, and for a long .time had been in the actual adverse possession of the premises, she cannot sustain an action of trespass on the freehold for cutting the trees from which the wood in question was derived. Whether her title to the land would vest in her a general property in the wood, after it had been severed from the freehold, and draw with it that constructive possession which will enable her to sustain this action, is a question not necessary now to decide. There are obviously serious difficulties in sustaining such an action; for, if the title to real estate will give a general property and a constructive possession to whatever is severed from the land while it is in the adverse possession of another, then in an action of trover or trespass de bonis against the actual possessor, the only question may arise in whom the title to the land really exists. If this action can be sustained, it will enable the plaintiff to try her title to the realty, without ever having made an entry upon the land, or adopting any means whatever to reduce her title to possession. 1 Smith’s Lead. Cases 410; Mather v. Trinity Church, 3 S. & R. 509. But whatever may be the rule on that subject, we are satisfied that the defendant is not liable in this case for the value of the wood, as it stood upon the land. It is not pretended that the defendant has used the wood, or in any way converted it to his own use, or done any act in relation to it but simply remove it from one place to another on the same premises. It was never removed from the farm on which it was cut, and, in fact, the wood was left by the defendant in the actual and constructive possession of the same person in whom it was before the removal was made. The plaintiff had the same constructive possession after the removal by the defendant, that she had before ; for it was left on the same premises to which she made her claim of title. The defendant, for that act, cannot be made liable for the value of the wood as it stood on the stump. The plaintiff can recover but nominal damages, or, at most, the actual damages sustained from the mere act of removal. If the defendant had removed the wood from the premises, and had taken the same into his exclusive possession, and an action of trespass or trover had been commenced against him, yet, if before judgment the property had been returned and placed upon the premises from which he had taken it, the rule of damages would be the same; the plaintiff could recover but nominal damages, or, at most, actual damages for the removal. The return of the property would mitigate the damages to that amount. The rule of damages in this case can be no greater than in that, for the injury sustained is no greater. The fact that this wood was left in the same lot in which it was taken, and, consequently, as much in the possession of the plaintiff as it was before its removal, should have the effect to reduce the plaintiff’s claim to nominal damages, or such actual damages as was sustained from the act of removing it. For that matter, we think, the judgment must he reversed.

In relation to the deed of Charles Pratt and his wife, the present plaintiff, we have no doubt that it is inoperative and void as to her, and that she is now clothed with the same rights she would have had if the deed had not been executed. . The statute under which that deed was executed required an acknowledgment by the wife, separate from her husband, that she executed the deed freely, and without any fear or compulsion from her husband; — not that separate certificates of that acknowledgment are necessary, but that those facts were acknowledged by her, separate from her husband, and away from his actual presence. That fact must be stated in the certificate of the magistrate, and recorded with the deed, otherwise the statute itself declares the deed null and void. The acknowledgment of the deed in this case has no certificate that it was made separate and away from the actual presence of the husband, arid, for that reason, by the express provision of the statute, the deed must be treated as inoperative and void, as to her. The case of Elliott v. Piersol et al., 1 Peters 328, is in point on that question. Slade’s Comp, of Stat, 171, § 12.

The plaintiff, however,, could make no claim to the land during her coverture, for the deed was good as conveying the life estate of her husband. After the death of her husband, on the 17th of August, 1848, her right to the land revived, and, as against her, no title by adverse possession has been acquired; for, during her coverture, she was excepted from the operation of the statute.

The judgment of the county court must be reversed, and the case remanded.