Hibbard v. Foster

By the Court. The plaintiff’s title to one half the lot, must be regarded as sufficiently made out, we think, from the original [546] source. The deed of Robert Hare aud wife, clearly describes the whole right, but in reciting the sources of their title, the deed of Kane and wife, is described as a deed of number 34, as it is. And having title to one half, the plaintiff must recover the whole land in ejectment, and the whole damage, we think, in trespass quare clausum fregit. That was certainly so at common law, when trespass is brought merely for mesne profits, and equally in an action of ejectment, the plaintiff, who recovered the land, would recover damages for his own portion of the land, and also for his co-tenant. The case of Chandler v. Spear, 22 Vt. 388, was trespass de bonis, and in that action, which is merely personal, one tenant in common can only recover his proportion of the common chattel, and the same rule was thought applicable when the action was in that form, notwithstanding the damages grew out of an injury to land. But we are not aware that any question has ever been made, but that in real and possessory actions, one tenant in common may always recover the damage due his co-tenant as against, a mere stranger. But it seems obvious, that the ground upon which the court below put the case, is sound. The act of Brown gave him possession of the whole lot, as against every one but the true owner. Sawyer v. Newland, 9 Vt. 383. This possession he might convey, and undoubtedly did convey to his grantees. And we are not aware, that it has ever been regarded as important that these acts of possession should be renewed from year to year, to enable the person, or his grantee, to maintain trespass. All that is required is that there should be continual claim. This is shown by the case, before the amendment, and more in detail, by the amendment. There can be no doubt the plaintiff’s title and right of possession, was sufficiently brought in question in the trial, if what we have heard in this court is to be regarded as any indication of the course of trial below. Powers v. Leach, 22 Vt. 226. Judgment affirmed.