Adams v. Fullam , 43 Vt. 592 ( 1871 )

The opinion of the court was delivered by

Peck, J.

Upon the plaintiff’s evidence, without any evidence on the part of the defense, the county court decided, as matter of law, that the plaintiff had not shown that his intestate, Chandler, had title to the land in question at his decease, but that the same was in John Adams, and thereupon directed a verdict for the defendant. If the evidence had no such tendency to show a right of recovery against the defendant as would in law justify a jury in finding a verdict for the plaintiff, the ruling of the county court was right; otherwise it was wrong.

It appears that the defendant levied an execution on the premises in 1856, in his favor, against John Adams, and subsequently entered into possession. According to the evidence, Chandler took a deed of the lot in 1814, and never executed any conveyance of it; but that of itself did not show title in him, as no title or possession was shown in his grantor ; and the evidence fails to show any possession by Chandler previous to the verbal contract of sale by him to John Adams in 1836 or 1837. But as John Adams never had a deed of the lot from Chandler, and his verbal agreement of purchase was, by mutual agreement between him and Chandler, given up and abandoned, and the possession under it by Adams surrendered up to Chandler in 1850, it is evident that Chandler or his representative could recover against this defendant who claims under John Adams, unless Adams gained a legal title as against Chandler by fifteen years adverse continuous possession while in possession under that verbal contract of purchase. While the testimony left it doubtful whether John Adams’s possession commenced in 1886 or in 1837, it was at least a question for the jury, whether John Adams was in possession fifteen years prior to his surrender of possession and all claim under his contract of purchase. Again, it was a question for the jury upon the evidence, whether John Adams’s possession was exclusive of that of Chandler. And most clearly it was error to assume as matter of law that the possession of Adams was adverse to Chandler, so that a continuance of it for fifteen years would gain title against Chandler. A purchaser of real estate by verbal contract may occupy it under such circumstances as to acquire the title from the vendor by fifteen years possession. For instance, if he purchase and pay the stipulated price, and go into possession as the present absolute owner in pursuance of such purchase, and continue the possession as such owner under such claim for fifteen years, his title would thereby bo perfected. But on the contrary, if by the contract of purchase he is to have the premises if he pays the price, and never complies with the condition, a possession for fifteen years by the purchaser under such contract would not be of such an adverse character as would ripen into a title against the vendor by fifteen years possession, unless something further were shown. The testimony to the effect that by that verbal contract Adams was to pay two dollars per acre for the lot, if he had it; the conversation between Chandler and Adams in 1846, 1847 and 1848, as to Adams giving up the lot; Adams telling Chandler he should not be able to pay him for it, and the fact that he never did pay anything for it; his taking back and disposing of the piece of mowing laud that Chandler, by the verbal contract, was to have in part payment, but which was never deeded to Chandler ; that Adams ultimately in 1850 gave up the lot as already stated, from his inability to pay for it; together with other evidence in the case of a similar character, tends to the conclusion that Adams never claimed to own the lot except upon the contingency of his paying for it, which payment he never made, and never claimed to have made. If so, the possession by John Adams was not of a character to ripen into a title against Chandler, even if continued during the statutory period of fifteen years. If John Adams, at the time the contract of purchase was given up, had not acquired a legal title as against Chandler, it was competent for them by verbal agreement to give up that contract of purchase, and Adams’s possession would enure to the benefit of Chandler. Upon this hypothesis, when the defendant in 1856 levied his execution upon the lot in question as the property of Adams, Adams had no right or title, either inchoate or perfect, upon which the levy could operate. The evidence tended to show title in Chandler ; and most clearly it tended to show that the defendant claimed under Chandler’s title through John Adams, and that John Adams never acquired Chandler’s title; and this tends to prove such a title or right in the plaintiff as is sufficient to warrant a recovery against this defendant.

Judgment reversed, and new trial granted.