Shepherd v. Hayes

The opinion of the court was delivered by Williams, Cii. J. In this case there are exceptions to the judgment of the county court, and also two petitions for a new trial. It appears that, on trial, the plaintiffs made out a title from the original proprietor. The defendant relied entirely on proving an adverse possession, for fifteen years, in himself and those under whom he claimed,.but introduced no deeds. The plaintiff then introduced copies of deeds, — one from Forbes to Nathaniel Blanchard, and the other from Nathaniel Blanchard to Abel Blanchard, under whom the defendant went into possession. These deeds were objected to, but we think they were admissible, as they had a tendency, with the other evidence introduced, to show both the time and the extent of the claim of those who first took possession of the land adverse to the title of the plaintiffs. > The plaintiffs then offered to prove the declarations of Abel Blanchard, made since the .commencement of this suit, unaccompanied by any evidence to connect him with the present defendant. This testimony was clearly inadmissible, in any point of view. The [493] case of Carpenter v. Hollister, 13 Vt. 552, is decisive against it. No declarations of Blanchard, made after this suit was brought, could be used in evidence against this defendant. The plaintiffs then contended, and requested the court to charge the jury, that the legal operation and effect of the deed from Nathaniel Blanchard to Abel Blanchard was to break off anj constructive possession which Abel Blanchard might have had to three eighths of the lot in question. We think the deed had no such controlling effect, as a legal and legitimate inference of law. It was evidence of the extent of the defendant's possession, but by no means conclusive; and if the defendant proved, to the satisfaction of the jury, that he claimed and possessed the whole lot for the period of fifteen years before the commencement of this suit, the deeds, on which the defendant did not rely, nor give in evidence, could not control, limit, nor locate his possession, nor entirely cut down the testimony which tended to establish a more enlarged possession. The court would have erred, had they, as matter of law, given such an effect to the deed. The charge of the court placed this subject correctly before the jury. Under this charge they must have found a possession of the whole lot adverse to the plaintiffs, and that Abel Blanchard did not confine his claim and possession to that part only which was deeded to him by Nathaniel Blanchard. The plaintiffs have then petitioned for a new trial; and it appears that, after having filed one petition in court, and while that was pending, he preferred another. We are aware of no precedent, or practice, to warrant consecutive motions and petitions for new trials, or by which several such motions, or petitions, for the same, or similar, reasons, or even for different reasons, can be pending at the same time. It would be somewhat embarrassing in the administration of justice, and perplexing to the parties, to have a great number of these petitions brought from day to day. We have not, however, particularly attended to the plea in abatement of the second petition, as we are satisfied that neither affords any ground for our interference to disturb the verdict. I make these observations, that it may not be considered that the court consider this proceeding regular, by their forbearing to say any thing on the subject. In both of these petitions the plaintiffs complained of surprise, because the defendant did not introduce Abel Blanchard as a wit [494] ness, who, on former trials, had testified in the case. If the plaintiffs had said they were disappointed, it would have been more correct ; and, if they were prepared with the testimony which they state in their petition, it would have been more a matter of surprise, if the defendant had introduced Blanchard as a witness. The testimony which the plaintiffs had, as to the declarations of Abel Blanchard, would have no other legitimate effect, than to impeach his testimony, although it had been probably urged to the jury, on former trials, for other purposes. Causes, which have had several trials, frequently present different aspects and changes as they progress from time to time; and I have witnessed several litigated cases, in which none of the witnesses, who testified at the first trial, were examined at the last. It is said that none of the witnesses have before located the first clearing. This, however, we apprehend, is not of sufficient importance to entitle the plaintiff to carry this case to another jury. The deeds were on record; and, if the defendant claimed nothing farther than those deeds, it was as apparent at the first trial, as it is now, that the centre piece, as it is called, was not included in the deeds ; and the plaintiffs could have fixed the attention of the witnesses to the particular spot, where the clearing was commenced. Numerous witnesses testified relative to the first chopping; but whether it was in the year 1823, or in 1824, was contested; and if it was material, the plaintiffs, by the use of ordinary diligence, could have fixed the spot where it was commenced, and could have ascertained and established it before the trial, as well as they can now. There is always an indefiniteness in witnesses in fixing any particular location. We apprehend, however, that this did not become so material as the plaintiffs now consider it, as, under the charge, the jury must have found a possession of the whole lot. The judgment of the county court is affirmed, and the petitions are dismissed.