Perkins v. Blood

Kellogg, J. The first ground of exception in this case which was insisted on by the counsel for the defendant on the argument was the admission of testimony tending to show an agreement between Hplbrook, the former administrator of the plaintiff’s intestate, and James Wilson, the defendant’s grantor, for a submission of the matters in dispute as to their respective rights in the premises to arbitration, and that James Wilson should continue in possession until a decision was made by the arbitrators, and also the decision and charge of the court upon the evidence so offered and received. The court decided that the evidence would, if true, interrupt the running of the statute of limitations in favor of James Wilson; and the defendant insists that. ¡the evidence ought not to have been treated as having this effect. — 281 — The testimony tended to show a contest between Holbrook and James Wilson for the possesion, and an agreement to submit their dispute to arbitration, and that in the ipean time, or until the decision should be made by the arbitrators, the latter should remain in possession of the premises. So long as the possession of the premises by James Wilson was continued by the permission of Holbrook, there was no use or enjoyment of the premises which could be considered as being adverse to the right which he represented or claimed. The possession in such a case would continue by his acquiescence, and not against his will; and the occupancy, being by permission, would have no adverse character. The agreement of submission to arbitration related to the present rights of the respective parties at the time it was made; and this, in connection with the agreement that, pending the arbitration, James Wilson should remain in possession, can be regarded in no other light than-as an agreement that while this possession continued with the acquiescence and by the permission of Holbrook for this purpose, the rights of neither of the parties should be effected by it. The running of the statute of limitations would, while the possession was thus continued, be suspended or interrupted by the express agreement of the parties, and we find no error in the decision of the county court that this was the proper effect which should be given to the evidence, if it was believed. If the evidence had any tendency to establish this fact, it was clearly admissible ; for the question to be determined by the jury was whether the possession of James Wilson was hostile or adverse to the right represented by Holbrook as administrator, or by the permission of Holbrook; and the evidence was pertinent and competent on the point. But it is objected by the defendant that the charge of the court on the plaintiff’s proof on this point was defective because the court did not instruct the jury that if the defendant’s grantor and those under whom he claimed had been in the actual and adverse possession of the premises more than fifteen .years at the time of making this agreement to arbitrate, then the agreement relied on as interrupting the running of the statute of limitations would have no effect upon the title acquired by such adverse possession. — 282 — The fact assumed in the statement of this objection does not appear in the bill of exceptions, but, on the contrary, it appears that the court charged the jury agreeably to the sixth of the defendant’s requests, that if Joseph.Wilson went on to the premises in 1835, and continued in the peaceable possession of the same for fifteen years, claiming it as his own, it gave him a good title to the lot against all the world, and also that the court charged the jury generally upon all the facts arising in the case, and particularly as to the law applicable to gaining title by adverse possession, and that the charge was not excepted to by the defendant on the ground'.of this objection. The objection must consequently be regarded as untenable. The next exception insisted on by the defendant is that which was taken to the decision of the court admitting the testimony of William Jenkins in respect to the declarations of the plaintiff’s intestate, Lovina Wilson, when the witness applied to her in 1849 for the purpose of buying the premises. The testimony objected to was that she said to the witness, on that occasion, that she would not sell the land, — that Joseph, her brother, who was then occupying it, and from whom the title of the defendant was derived, was very poor and sick, and was living on it, and that she thought she should not sell it while he lived, but should let him live on it while he lived. The court decided that this testimony was not admissible for the purpose of showing-that Joseph was in possession under Lovina, nor for any purpose_ except on the question of abandonment of her prior possession, and that it was admissible as tending to rebut the presumption of such abandonment, and admitted the evidence and charged' the jury accordingly. It appeared that Lovina or her mother had the prior possession, and that the right of her mother was transferred to her before her brother Joseph occupied or resided upon the premises; and it was claimed on the part of the defendant that this prior right was lost by abandonment by Lovina after she went to Massachusetts, and while Joseph Wilson was in possession. The loss of right or title by abandonment implies some act done, and must depend upon the acts or conduct of a party who has been in possession. The doctrine of abandonment is — 283 — usually applied to incorporeal hereditaments, and Prof. Washburn in his recent treatise on the Law of Real Property expresses the opinion that in no case can a man part with, or lose, title to the land itself by any act of oral declaration of abandonment, unless it comes within the category of estoppel, or is followed by such a possession by the person claiming title thereto in his stead as brings the case within the statute of limitations. 2 Washburn on Real Property, 453, 457. The declarations of Lovina Wilson which were objected to relate to the point of abandonment as made by the defendant on the trial, .and, being made in reply to an application to her to sell the land, are so connected with her conduct in respect to her possession or claim, and tend so directly to qualify or explain her connection with thee possession, as to warrant their admission as part of the res gestae; and, as such, they were proper to be considered as tending to rebut any presumption of abandonment by her of her prior possession. 1 Green’l Ev., § 108, et seq.; Holbrook et al. v. Murray et al., 20 Vt, 525 ; Elkins v. Hamilton et al., ib. 627. The defendant requested the court to charge the jury that the plaintiff could not recover unless he showed that his intestate had a legal title to the lot at the time of. her death, which the court declined to do. It has been settled by repeated decisions in this court that actual prior possession, not apparently tortious, will furnish a prima facia ease for the plaintiff in ejectment. Ellithorp v. Dewing, 1 D. Chip. 141; Hathaway v. Phelps, 2 Aik. 84 ; Doolittle v. Linsley, ib. 155 ; Warner, Adm’r v. Page, 4 Vt. 291; Russell v. Brooks, 27 Vt. 640. And the charge of the court was in accordance with this principle. This, rule seems to be confirmed by modern English authorities. Note a, to case of Allen v. Rivington, 2 Saund. 5th Ed, by Patteson and Williams, 111. Thus, in Doe v. Dyeball, 3 C. & P. 610, (14 E. C. L.,) ejectment was brought to recover possession of a room in a house — the defendant had forcibly taken possession of the house. The plaintiff proved a lease to him of the house and a year’s possession, and rested his case there. It was objected that no title was proved in the demising parties to the lease, but, per Lor4 Tenterden : “ That does not signify; there is ample proof; the — 284 — plaintiff is in possession, and yon come and turn Mm out: — you must show your title.” It is obvious that this principle would not be of any benefit to a plaintiff in ejectment if tbe defendant could set up an outstanding title in a stranger. And as early as the case of Hathaway v. Phelps, ubi supra, it was questioned by Skinner, C. J., whether it was competent for a defendant in ejectment to set up against the disseizee an outstanding title in a stranger. In Proprietors of Braintree v. Battles, 6 Vt. 395 ; Phelps, J., says that, “ the main reason why the evidence (of an outstanding title,) is to be regarded as immaterial is, that the defendant does not connect himself with that title,” In Russell v. Brooks, ubi supra, it was held that where the plaintiff had both the record title and possession of a piece of land, of which he was dispossessed, his right to repossess himself of it by an action of ejectment could not be resisted by the dispossessor on the ground that the plaintiff had conveyed the premises to a third person by a deed never recorded and sñbsequently destroyed, when there is no privity whatever between the defendant and such third person. "We think that the cases referred to distinctly indicate and adopt the principle that, as against a prior actual possession, not apparently wrongful, a defendant in ejectment cannot set up an outstanding title in a stranger unless he connects himself with that title, and that the rule that the plaintiff in ejectment must recover by the strength of his own title, without any regard to the weakness of the defendant’s, must be taken subject to this qualification. And the rule of decision upon a similar question in the case of Townsend v. Estate of Downer, 32 Vt. 183, is not inconsistent with this principle, because the plaintiff in that case did not rely upon a prior actual possession as a ground of recovery. In this respect, that case may be distinguished from the present, and the outstanding title was there relied upon as a defence to and not against the actual possession. It is a settled rule of property, that possession gives the possessor aright against every person who cannot show a better title, and the right arising from an actual possession ought not to be defeated except by a superior right. In an action of ejectment under the statute, the plaintiff recovers according to his right, — 285 — and the judgment is conclusive only as against the parties, their heirs and assigns. The judgment is for the possession as well as the title, and in a case where the plaintiff had a prior actual possession the question would be not as to the absolute title of the plaintiff, but as to his right relatively to the defendant, "We are accordingly of opinion that the defendant was not entitled to a charge to the jury, that the plaintiff could not recover without showing that his intestate at the time of her death had a legal title (understanding by this an absolute legal title,) to the premises. It was true that the absolute or paramount title to the premises was not vested in the plaintiff’s' intestate by virtue of any adverse "possession by her, or by those- under whom she claimed; and that her title by occupancy and possession was subordinate to the title granted by the charter to the first settled minister, and would yield to that title whenever it was asserted; but the defendant did not claim under that title, and was a stranger to it. As between the plaintiff’s intestate ánd the defendant, her prior actual possession, if established, would prevail, and the plaintiff as her administrator would be entitled to recover. In. respect to the right of recovery by virtue of a prior possession, and the effect of an abandonment of the possession, it appears that the court gave such instructions to the jury as were satisfactory, and we find no error in the ground upon which the case was put to the jury upon the points indicated in the defendant’s first and second requests. The defendant excepted to the ruling and charge of the court in respect to the effect of the lease executed by the county treasurer of the county of Caledonia to Holbrook. It appeared that the plaintiff’s intestate died in 1851, and that Holbrook was appointed administrator of her estate in March, 1852, — that Holbrook died in 1855, — and that the plaintiff was appointed administrator de bonis non, of the intestate,.on the 17th of March, 1856. The lease referred to was executed to Holbrook as administrator on the 1st of May, 1853, and is a lease of the land in controversy for five years from that date for the yearly rent of four dollars and fifty cents, and was executed under the provisions of the Act of 1852, relating to public lands in unorganized — 286 — towns and gores ; (Acts of 1852, No. 58.) • There was no provision, until the passage of this Act, for the care or disposition of public lands in such towns and gores. The defendant insisted that the taking of this lease was, in law, an abandonment on the part of Holbrook of all right and title which the intestate, or he as her administrator, had in the premises, and of all right and benefit of any possession which she, or those under whom she claimed, previously had; and the court held that this would be' so- as between the plaintiff and the treasurer, or any one claiming under Mm3 and also as between the plaintiff and the -proprietor of the first" settled minister’s right or any one claiming under that title ; but that as to the defendant, it Would not be so, because he did not claim under that title or right, — though, as between these parties, it was evidence of such abandonment, but not conclusive, and that if Holbrook, in procuring and taking the lease, did not intend to abandon any claim he then had in his representative character as administrator, but only took the lease to strengthen his claim, the taking of the lease would not affect any right of possession which his intestate, or he in her right, or those under whom she claimed, previously had as against this ■defendant or any person who did not claim under the title of the right of the first settled minister or the county treasurer, — but that if he did abandon the previous possession, the plaintiff could not recover. The defendant insists that the taking of this lease was, in law, an abandonment of any right under the prior possession of the plaintiff’s intestate, not only as between her right and the right of the first settled minister, but also in respect to all others, whether claiming under the right of the first settled minister or not. The only question which this part of the case presents for consideration is, whether the defendant, being a stranger to, and having no connection with, the right of the first settled minister, can claim any advantage or privilege under it. For reasons already stated, we do not consider him at liberty to set up the outstanding title of that right, while he is a stranger to it, against the prior actual possession of the plaintiff’s intestate by way of defence, and the same reasons are equally conclusive against allowing him to stand upon or assert any advan — 287 — tage, presumption, or privilege belonging to the right of the outstanding title, so long as he does not connect himself with that right. The question which the defendant is entitled to raise on this part of the evidence is one of fact, and not of law, and is this: — whether Holbrook, in procuring and taking the lease intended to abañdon the claim which he then had as administrator, or not; or whether he only took the lease for the- purpose of -strengthening his claim to the possession of the premises. The procuring and taking of the lease is consistent with either purpose, though perhaps it should be regarded as prima facia evidence of his purpose to abandon his previous claim; and, as a question of fact, it was submitted to the jury to find what his intention was in procuring and taking the lease. The defendant claims that, as Holbrook was dead, there was and could be no proof to show his intent, beyond the naked fact of his procuring and taking the lease. But the intent with which an -act was done may be inferred from the situation and conduct of the party, and the accompanying circumstances of the case ; and, indeed, this would be the only possible evidence to which resort could be had after the decease of the party. Even, if living, his testimony under oath in respect to his intent; in any particular act might be impeached by his conduct and the surrounding circumstances of the transaction, and would not, of itself, be conclusive. We cannot say, therefore, that there was no proof upon this point to be submitted to the jury, as claimed by the defendant, and we are satisfied with the instructions which the court gave to the jury on this question. The jury having found that Holbrook did not intend to abandon the previous possession when he procured this lease, but took the lease only for the purpose of strengthening his claim, the right which the plaintiff represents, arising from the prior possession,'is not affected as against this defendant by the procuring and taking of that lease, and the case is to be treated so far as the defendant is concerned the same as if that lease never had existed. The previous title or interest of the intestate remained the same as before, as to all persons except those claiming in the right of the first settled minister; and, as to' strangers, there was no merger of her previous right or interest in the title under the lease. The interest' acquired by the lease — 288 — was, as to strangers, no new interest, chattel or otherwise, but was merely ancillary to her previous right. The defendant insisted on the trial that the judgment in his favor against Bartholomew and Smith was a bar, by way of estoppel, against all persons claiming under Lovina Wilson, the intestate, or in her right, or under the lease ; but the court instructed the jury that it was not a bar or an estoppel, and would not defeat the plaintiff’s action, or change the legal rights of the parties. It is claimed that this instruction was erroneous. The jury have found that Holbrook took the lease merely for the purpose of strengthening the right of the intestate, and with no purpose to acquire title in his own right. The. case of Administrator of North v. Barnum cmd Rich, 10 Vt. 228, is a decisive authority for the proposition that an administrator of an estate cannot be permitted to purchase in for his own benefit an outstanding title to land of which his intestate died seized in fact, claiming title; and that the title acquired by the administrator by possession or purchase would enure for the benefit of the estate. Holbrook having neither acquired, nor attempted to acquire, any personal or individual right under the lease, his administrators had nothing whatever to do with the premises as his representatives, and they became trespassers in taking possession of the land. In no sense wele they the representatives of the estate, or right of Lovina Wilson, and they were as much strangers to the title as they would have been if they had not been Holbrook’s administrators. The judgment in ejectment in favor of the defendant against them did not affect the right of the plaintiff’s intestate, because they did not represent that right, 'and were not in privity or connection with it. No authorities are necessary to support the principle that a judgment binds only those who are parties, or privy in interest with the parties. The conclusions above expressed dispose of all of the points made by the defendant on the argument. There are other questions which arise upon the exceptions, but have not been insisted on.. We find no error in the conduct or theory of the trial, or in the rulings and charge of the court, and the judgment below in favor of the plaintiff is consequently affirmed.