Wells v. Houston

Kellogg, J. The oratrix, in her bill, sets up a right or title to the premises in controversy by occupancy, by herself and those under whom she derives or claims her title, peaceable and uninterrupted, and adverse to all others for nearly forty years. This would make an invincible title against all persons but the true owner. To avoid this title, the defendant, in his answer, sets up the right of the town of Victory to the proprietary right for its first settled minister, granted in its charter, and that the premises in controversy were set to that right in the proprietary division of the town, and that the defendant entered on the premises as one of the selectmen, and by direction of the other selectmen, of the town, in the right and behalf of the town. This defence consists wholly of matter which is new and not responsive to the oratrix’s bill; and the defendant’s answer is traversed. A ground of defence relied on in the answer, but not being responsive to the bill, must be sustained by proof. Where the answer is not responsive to the bill, or sets up affirmative allegations in opposition to, or in avoidance of, the plaintiff’s demand, and is replied to, the answer is of no avail in respect to such allegations, and the defendant is as much bound to establish, the allegations so made, by independent testimony, as the plaintiff is to sustain his bill. Mott v. Harrington, 12 Vt. 199 ; Gannon et al. v. Norton, 14 Vt. 178 ; Lane v. Marshall et al., 15 Vt. 85 ; Pierson r. Clayes et al., 15 Vt. 93 ; McDonald v. McDonald et al,, 16 Vt. 630 ; Allen, Adm’r, v. Mower, 17 Vt. 61; Sanborn v. Kittredge, et al., 20 Vt. 632 ; Wakeman v. Grover, 4 Paige, 23 ; 2 Daniell’s Chancery Pleading and Practice, (Perkins’ third Amer. edit.,) 841, note. The case stands for hearing 248 on the bill, answer, and the proofs on the part of the oratrix. The defendant makes no proof whatever to sustain the defence which he sets up. He does not even furnish proof to show that the premises in controversy were set out in the proprietary division of the town to the right of its first settled minister. The mere fact that the lot was called the minister lot does not of itself prove anything more than that this was the name of the lot; it does not prove that the lot was allotted to the minister right. As the defendant makes no proof,, he does not by proof connect himself with the right or title of the town. The allegations of the bill which are denied by the answer of the defendant are, in substance sustained by the oratrix’s proofs. As the defendant fails to connect himself with the title of the town, he cannot stand, upon that title, but is to be treated as a stranger intruding upon a party in possession ; and the oratrix is entitled to the interference of the court of chancery in her behalf, to prevent a succession of suits, and to suppress useless, vexatious and interminable litigation, arising from a renewal of acts of trespass on the premises threatened by the defendant. 2 Story’s Eq. Jurisp., (Redfield’s edit.,) §§ 901, 918, 919, 959, The oratrix by her bill makes her claim not against the town, but against the defendant, who does not by any proof connect himself with the right or title of the town. A part of the court are of the opinion that, after a quiet occupancy for such a length of time as the oratrix has shown in this case, a grant of the legal title to the premises ought to be presumed in her favor. University of Vermont v. Ex’r of Reynolds, 3 Vt. 542, 558, et seg.; but inasmuch as a determination upon this point, or upon the validity of the arbitration and award referred to in the bill, is not necessary to support the judgment now ordered, and as all of the Judges now present concur in this judgment on the other grounds above stated, no opinion is intended to be expressed on those points as the judgment of the court. The decree of the chancellor in favor of the oratrix, by which she is allowed the relief sought for in the prayer of her bill, is affirmed ; and the case will be remitted to the court of chancery for the purpose pf perfecting the decree.