Wilmoth v. Canfield

Judgment was entered in the Supreme Court, May 18th 1874. Per Curiam. The charge of the court as to the tax-title was so clearly right no comment is necessary. The payment of the taxes was a question of fact fairly left to the jury. The taxes being paid, for which the land was sold, the tax-title necessarily fell. We have some hesitation as to the omission of the court to [154] charge on the defendant’s second point. It would have heen better had the court answered it specially, so as to define distinctly to the jury what constitutes possession and ouster. Still we are not able to say that the general charge was so wholly inadequate, as an answer to the point, as to require a reversal. The court distinctly, and more than once, told the jury that the plaintiff could not recover without actual possession of the land. Under this charge the verdict must have been for the defendant, if the jury found that the plaintiff was not in possession of the locus in quo. But the tax-title being void, if the plaintiff were in actual possession of his land, the law extended this possession presumptively throughout the whole. Hence the defendant could not by his entry extend his possession beyond his pedis possessio, unless by an actual disseisin. Consequently the defendant could not have had a constructive possession beyond that within his fields or cultivation. The actual possession of the plaintiff found by the jury necessarily covered all the rest of the land not included within the defendant’s fields or cultivation. The making of a survey and the cutting of timber on another’s land in his actual possession, afford no ground for a constructive ouster: O’Hara v. Richardson, 10 Wright 386. If the defendant did enter and clear land in this case, the actual possession of the plaintiff being found by the jury, we must presume that the jury -found this actual possession to include the locus in quo. Judgment affirmed.