Carpenter v. Thayer

The opinion of the coiirt was delivered by Royce, J. It was proved, on trial, that the plaintiff owned but one undivided tenth part of the land sued for, and that the defendants, Thayer and Nutting, were in possession of the whole lot, under the other defendant, Hutchinson. It, also, appeared that Hutchinson had a title to an undivided fifth part of the lot. The plaintiff and Hutchinson were thus shown to be tenants in common ; and the other , defendants, being in under Hutchinson, and, therefore entitled to stand upon his right, were, also, in effect, tenants in common with the plaintiff, to the extent of Hutchinson’s title-Under these circumstances it became necessary for the plaintiff to show, that she had been disseized or ousted by the defendants, before the bringing of this suit; since her only right was to enjoy the premises in common with them. And the principal question in the case arises upon the evidence, received at the trial, to prove such an ouster. It is contended that what transpired between the defendants and the plaintiff’s professed agents, Riford and Wm-Nutting, was not admissible evidence for this purpose, without proof of an express, and even written authority to those two persons, to act for the plaintiff in that behalf. This is assuming that in a case of this kind, an ouster can be proved [555] by nothing short of an actual denial of possession when demanded, made to the co-tenant, or to some duly authorized agent. But this is a much stronger proposition than the authorities appear to warrant. As co-tenants have a community of interest, the possession and pernancy of profits, by one alone, is usually presumed to be in the right of all. In this respect it differs, greatly, from the unlicensed entry and possession of a stranger. Hence the ancient, and still subsisting, rule of law, that, to entitle one co-tenant to support ejectment against another, an actual ouster must be shown. And it was once supposed that this rule could only be satisfied by the strongest evidence, — something little short of an actual turning out by force. But this strictness was, long since, relaxed, and the rule has been applied in a more comprehensive sense. Thus it was said by Willes, J. in Fisher v. Prosser, 1 Cowp. R. 219, — “ However strict the notion of an actual ouster may have formerly been, I think adverse possession is, now, evidence of an actual ouster. ” This is the substance of all the modern decisions. An actual ouster is still to be made out; but it may, and should be, found, upon satisfactory evidence, of an adverse possession. The hostile character of the possession may be evinced in various ways. It will not be inferred from exclusive possession, merely, unless it has been of very long continuance, and attended, as in the case just cited from Cowper, with circumstances excluding all probability of assent or understanding on the part of the other owners. Catlin v. Kidder, 7 Vt. R. 15. But with this exception, (and even this does not generally hold between the charter-grantees of a township, Vt. University v. Reynolds, 3 Vt. R. 542,) the evidence is the same as in other cases of adverse possession. Pomeroy v. Mills, 3 Vt. R. 415; Higbee v. Rice, 5 Mass. R. 344; Cummings v. Wyman, 10 Mass. R. 464; Barnard v. Pope, 14 Mass. R. 434; Chapman v. Gray, 15 Mass. R. 439; Brown v. Wood, 17 Mass. R. 68; Shumway v. Holbrook, 18 Mass. R. 114; Clark v. Vaughan, 3 Conn. R. 191; Giddings v. Canfield, 4 Conn. R. 488; Allyn v. Mather, 9 Conn. R. 128; 14 Vin. Ab. 512. There can be no doubt that the evidence in the present case was sufficient to bring it fully within the doctrine of the authorities here cited. Although the deed to Hutchinson, being but a quit [556] claim of the grantor’s right, was not, of itself, evidence of any pretension, on the part of Hutchinson, adverse to the interests of the other co-tenants, (7 Yt. R. as before cited ) ; yet he proceeded to exercise the rights of sole owner. In that character he contracted to sell and convey the whole lot to the other defendants, and asserted an exclusive claim and title to the whole, when applied to by Riford. And the other defendants vindicated themselves under this assumed title of Hutchinson, in repelling the request made to them in behalf of the plaintiff. We have no occasion, then, to inquire as to the precise authority with which Riford and Nutting were invested. For admitting that they acted without authority, the declarations then made were, nevertheless, evidence to characterize the possession, which, upon all the showing, was unequivocally adverse to the plaintiff’s right. The exception taken to the- charge of the judge is, therefore, unsupported. Little need be said in reference to the other exception. If the deposition of Putnam was withdrawn from the files in violation of any rule of the county court, that rule is not brought before us ; nor are we authorized, when sitting as a court of error, to reverse the action of that court upon their own discretionary rules. The deposition had been received in evidence at the preceding term, under a written agreement of the parties, not limited in its terms, to any one trial, and containing a mutual waiver of all exceptions to the deposition, on account of informalities. And it is clear that neither of the parties could become a witness, unless by mutual consent, to testify whether the agreement was to extend to more than one trial. Judgment of the county court affirmed,