Chesley v. Brockway , 34 Vt. 550 ( 1861 )

Aldis, J.

When Varney sold the manure to the defendant, he was the owner of it, and of the land. The defendant’s right to take it was at that time unquestionable, but hi§ right would not ripen into a perfect title until he actually took it. Until such taking and severance by the defendant, the manure remained a part of the realty.

While thus remaining Varney sold the land to the plaintiff, without giving him notice of the sale to defendant. Thus the title to the manure passed by the deed to the plaintiff. At this point both plaintiff and defendant were 'bona fide purchasers — each having the same right of ownership. He who first perfected such right would get the complete legal title. The defendant could do it if he got the manure into his possession before, the plaintiff’s deed was recorded or he had actual notice of the deed. The plaintiff could do it if he recorded his deed, or if the defendant had actual and legal notice thereof, before taking possession of the manure. The jury must have found that the defendant had notice of plaintiff’s deed before he removed the manure — and as such notice would perfect plaintiff’s and defeat defendant’s title — the act of removing by'the defendant was wrongful. It has been claimed in argument that the notice to defendant of the deed was not sufficient. But upon this point the charge was not objected to by defendant — nor any request made for any special charge on the point'. Nor does it appear from the case what the evidence of notice was — or that it was not sufficient to affect the defendant with full knowledge of the deed. The only question therefore that is fairly before us is whether trespass qu. cl.fr. will lie.

The objection is that the plaintiff had not a sufficient possession of the premises on which the manure was situate at the time it was moved,- to maintain trespass on the freehold. He had taken.a deed of the land, but had not entered into actual posession, and the grantor, Yarney, remained in the house on the premises with his family for a few days after the deed, but by mere sufferanee and without any right or claim of right.

The strict rule of the common law that the ownership of land does not give the owner constructive possession, but that he must have actual possession to sustain trespass, has been modified in the American courts; and now the possession of land follows the title. The legal owner of land is presumed to be in posession of it, unless there is an adverse possession, or some claim by one in possession of a right by contract or operation of law to the exclusion of the owner.

This was held in Robinson v. Douglass, 2 Aik. 374, and has been the law ever since in this State.

It is claimed that the doctrine of Ripley v. Yale in the 16 Vt. is to the contrary ; but ihere Yale was in possession, claiming in his own right as purchaser under a contract. Here Yarney remained in posession of the house without any claim of right, by mere sufferance — liable to be turned out at any moment. Trespass qu. cl-.fr. will lie against a strict tenant at will, or at suffererance, for an injury to the reversionary interest of the owner of the freehold; and if against the tenant, then against one claiming to act under the tenant. This was the ancient doctrine of the common law, and has been repeatedly recognized in modern decisions — although in some cases like Campbell v. Arnold, 1 Johns, 511, cited by defendant’s counsel, may be found to maintain that case is the proper form of action.

See 1 Hill’d on Real Prop., 552; Starr v. Jackson, 11 Mass. 519; 15 Wend. 169; 11 Johns, 385; 21 Pick. 367; 19 Vt. 517, Cutting v. Cox.

So trespass has been held to lie against ah outgoing tenant at will who sells and moves the manure, and against the purchaser. 1 Hil’d on R. P. 277 ; 5 Greenleaf 222 ; 21 Pick. 367.

So where a tenant carries on a farm at the halves, the landlord has such a possession as enables him to bring trespass for an injury to his reversionary interest — as for cutting down trees. 19 Vt. 517.

Applying the reason of these decisions to the case at bar, it is clear that the plaintiff had such a possession as fully sustains the action for this injury. The injury was one affecting his interest in the land — in no wise affecting the- rights of the temporary occupant. The occupant Varney remained in the house at the mere pleasure of the plaintiff, and only for a few days. He claimed no possession or right of possession in the land. His possession was of the most transient character — and for no purpose of cultivating or using the land. In such a case the title draws to it the possession for the purpose of redressing injuries to the estate of the real owner, as much as if the possession was really vacant.

Judgment affirmed.