Austin v. Bailey

Aldis, J. I. The heir upon the death of the ancestor has a vested interest in the estate which he may immediately convey by deed. 3 Vt. 207; 17 Vt. 280. The grantee by the deed gets the title of the heir and stands in his place. He holds the land as the heir did subject to the lien (if any) of the administrator. To protect this lien the statute provides (G. S. p. 391, § 14) that when an administrator shall be appointed and assume the trust no action of ejectment shall be maintained by any heir until (1) there shall be a decree of the probate court assigning such lands to such heir, or (2) the time allowed for paying debts shall have expired, or (3) the administrator shall voluntarily surrender possession to the heir. In this case the title (as the jury must have found) became vested in the Heatons. King Heaton, who thus was the owner of a part [223] of the land, died in 1854, leaving several heirs. One of them, Alva, deeded the land to Webster under whom the defendant claims. The interest of the heir thus passed to the defendant. The defendant E. F. Bailey, being in possession sets up his title derived from Alva Heaton. The plaintiff shows that King Heaton, the father of Alva, died in 1854, and that an administrator of his estate was appointed; but nothing further was shown, and it did not appear that the administrator had ever asserted any right or claim to the lot. Upon this single fact, that administration of King Heaton’s estate was granted in 1854, the plaintiff claims that the defendant cannot set up his title derived from Alva Heaton. This goes upon the ground that he cannot sue in ejectment, and if so, cannot defend in ejectment by setting up that title upon which he could not sue. Without stopping to consider whether this conclusion is legally derived from the premises, it is sufficient that we hold that upon the facts stated he would not be precluded from suing in ejectment. 1. The defendant E. F. Bailey, was in possession of the premises when the plaintiff brought this suit. There is nothing to show that he was n ot •in possession by the consent, — “ the voluntary surrender ” of the administrator. Possession will not be presumed to be wrongful, — but on the contrary, in the absence of all proof, will be attributed to a lawful origin. 2. The statute provides (G. S. p. 404, § 29) that the time to be allowed by the probate court for the payment of debts shall not in the first instance exceed one year from the time of granting letters of administration. Without proof we cannot presume that the probate court either exceeded the law or extended the time. Here nine years have passed since the granting of letters of administration, so it may well be presumed that the time allowed for paying debts has expired. The period to which the probate court can' extend the time for paying debts may not exceed three years and six months. G. S. ch. 53, §§ 29, 30, 31. In the case Hubbard v. Ricart, 3 Vt. 207, the court held that the grantees of the heirs could sue in ejectment within two years after the granting of administration. There having been no interference by the administrator, his lien was presumed satisfied after a lapse of [224] two years. In that case as in this the party denying the right of the heir’s grantee to the land, was a stranger to the title. If it were the administrator or a creditor of the estate that denied the right of the heir, the court would perhaps have more hesitation in presuming the lien of the administrator satisfied. II. The entry of Webster and his occupancy of the lot in 1848 was in his own right and under a claim of title. It continued through the season and excluded the plaintiff. This was clearly an interruption of the plaintiff’s possession. The adverse possession which gives title must be continuous for fifteen years. It is urged that Webster’s possession in 1848 Was by agreement with the plaintiff and virtually in subjection to the plaintiff’s title* But the plaintiff’s testimony even does not sustain this view. He says Webster claimed that he had paid the tax upon which the plaintiff claimed he had bid the lot off at the tax sale. Thus their claims were hostile. They then agreed that Webster should remain in possession the rest of the season, and if he did not produce his receipt for the payment of the tax he was to quit the premises at the end of the season. In the fall he quit, without producing the receipt. This agreement and Webster’s failure to produce the receipt (which upon this point we assume to have been as the plaintiff testified) shows that Webster’s possession was without right, but not that it was in subjection to the plaintiff’s title. There is no agreement to hold under the plaintiff, no payment of rent in any form, no recognition of his right; on the contrary there is persistency in the hostile claim till the end of the season. During this period the plaintiff was out of possession and by his own agreement was to remain out till fall. The court properly held that this interruption broke the continuity of the plaintiff’s adverse possession, so that he could not tack his prior to his subsequent possession to make out the fifteen years. III. If G-amsby and the Heatons had acquired title by fifteen years of adverse possession, such title thereby became perfect, and was as good as a paper title by the record from the original proprietors. It was no longer a mere possessory right. It had ripened into [225] a legal estate in fee in the land. This being so it^is quité obvious that such an estate, such a title, ¡cannot pass by mere verbal surrender. IV. The ruling of the court, that Webster’s prior possession of the lot for two or three years before the plaintiff’s entry upon it would prevail over the defendants’ subsequent possession for less than fifteen years, unless Webster gave up and abandoned his possession, stands upon a long established principle of the law. Where the rights of both parties stand upon mere possession not yet ripened into a perfect title, he who has the prior possession has the best right. The qualification of the rule, that if the party having the prior possession abandon and surrender it to the adverse party he cannot afterwards set it up, was fully explained to the jury. Judgment affirmed.