Armstrong v. Colby

The opinion of the court was delivered by Wheeler, J. As the plaintiffs acquired their title from Patience Burroughs, and the defendants theirs from Simeon Palmer, and the action of ejectment that she brought against him was for the possession of the same land that is in dispute in this action, any judgment in that action would be between parties to whom the parties in this action are respectively privies, and about the same subject matter, and be conclusive upon these parties as to all matters adjudicated in it. The court properly looked into its own docket entries to see what had been done by the court in that action, without requiring proof of the record written out at length, as would have been necessary to make proof of the proceedings in another court. When looked into, the entries show a verdict for the defendant in that action, and do not show in express terms any judgment on the verdict. In some of the county courts in this state, the practice has been not to make any formal entry of judgment on verdicts, but to treat all verdicts left to stand, as having judgment rendered on them, and to have the records made up [365] accordingly. From the entries made in that action, such appears to have been the practice in that court; for there is an entry of exceptions allowed, and execution stayed, and there could be no execution to be'stayed without a judgment on which it could issue. In this view, the docket entries showed a verdict and judgment for the defendant in that action. If that court had certified that such was not the practice there in respect to entry of verdicts and judgments, or that the proof furnished by the entries was disposed of on the ground that by the practice of the court the entries did not show a judgment on the verdict, such a statement might have been conclusive upon this court; but as there is no statement of that kind, the entries are left to have their ordinary effect. But if the entries could not be considered as showing a formal judgment of the court on the verdict, they show that a verdict was rendered for the defendant, and, without treating the entry of payment on the docket as a record of an official act that would be evidence of payment, the defendants’ evidence tended to show that the plaintiff therein, after the verdict, paid the defendant his costs of the suit, and did not further prosecute it. In Catlin v. Taylor et al. 18 Vt. 104, it was held that where a plaintiff, in an action brought by him before a justice of the peace, after judgment of the justice against him, and an appeal by him, paid the defendant his costs, and did'not prosecute it further, it was a renunciation of his cause of action, in effect like a retraxit at common law, and equivalent to a final judgment against him in the action. The payment by the plaintiff in that action of ejectment, of the defendant’s costs in the action, after verdict for the defendant, was equally a renunciation of her claim in the action, and, with the discontinuance of the proceedings, was in effect equal to a judgment against her. In this view, if there was no question about the payment, the proceedings were conclusive as a judgment; and if there was a question about it, and it should be found by the jury to have been made, they would be likewise conclusive. The judgment in that action, or 'the proceedings equivalent, if they were had, settled conclusively as between these parties, that Simeon Palmer then had the right as against Patience Burroughs, to the land in controversy. This right, as the case stood, appears [366] to have continued down to the defendants, as against the plaintiffs, unless it had been lost by adverso possession. The case shows that the plaintiffs’ evidence tended to show that this land was not originally fenced and occupied as a part of the defendants’ lot, and that they had within fifteen years, moved their fence on to land claimed by the plaintiffs beyond the original boundary line as originally fenced and occupied by them ; that the defendants’ evidence tended to show that this land had boen treated and recognized as a part of their lot more than fifteen years; and that the jury found that the defendants had so moved their fence within twelve years, and had not acquired title by possession to -the land on to which they so moved it. This finding upon the evidence would doubtless settle that the defendants had not acquired title by possession to that land after they moved their fence on to it, and probably settle that they never acquired title to it by possession at all, but would not settle that the plaintiffs had got title to it by possession after the title had been settled to be in the predecessors of the defendants by the action of ejectment and before they so moved their fence on to it. If, as claimed in argument for the plaintiffs, it had been settled by the verdict that the plaintiffs had so acquired title, the judgment in the action of ejectment would have been of no importance in the case ; but as the case stood, it must have been very important, for it would show conclusively that the predecessors of the defendants had title to the land in dispute at the time when that judgment was rendered, and that the defendants had title to it when they moved their fence on to it, unless the plaintiffs had acquired title to it between the time of that judgment and the time of the removal of the fence. The case may have been tried upon the theory that the plaintiffs had so acquired title, but it does not appear that it was, and; as it does appear that the defendants did not have such effect given to the judgment as they were entitled to, it cannot be presumed that there was something in the case that made the judgment of no importance. If the plaintiffs would have the benefit of any such thing, they should show it affirmatively. The name, “ Lington,” set forth in the deed to Patience Burroughs as the name of the town in Addison county in which the [367] land was situated, is so like the name, Lincoln, and so unlike the name of any other town in that county, that there appears to be no error in admitting the deed in evidence, in connection with other evidence showing the situation and circumstances at the time, as tending to show that this lot of land was conveyed by the deed. And further, the fifteen years and more of possession of the plaintiffs’ lot, which the case shows appeared, would show that they had title to that lot up to the disputed part, without the aid of that deed. The deed from Pope to Ralph, a grantor of the plaintiffs, and Stearns, was a quit-claim deed, merely, for which it is not shown that they paid anything, and, even if it had covered the land in dispute, which it did not, would not have shown, nor had any proper tendency to show, but that Ralph owned the land, or claimed to own it, which was the question on which it was offered to bear. The motion in arrest of judgment assserts that the declaration is insufficient to warrant any judgment for the plaintiffs upon, and the decision upon that motion is to be reviewed in the light of the declaration alone. It is true, as claimed for the defendants in argument, that, in an action by husband and wife jointly, the declaration must set forth the interest of the wife in the cause of action, and should not set forth as a substantive ground of recovery, anything that wmuld constitute a cause of action of the husband alone to the exclusion of the wife. This does not mean that the exact estate or interest of the wife in the subject-matter of the action, must be precisely stated, but means that so much must be stated as to show her to be entitled to sue the same, as a declaration in behalf of any plaintiff, or any number of plaintiffs, must show that the plaintiff, or all the plaintiffs, are respectively entitled to sue. Nor does it mean that matters in aggravation merely, in which the husband is alone interested, may not be set forth in an action by him and wife, but only that he and his wife cannot together recover on any cause of action that accrued to himself alone. Russell wife v. Corne, 2 Ld. Raym. 1031; Todd & wife v. Redford, 11 Mod. 264. In each count in this declaration, the gist of the cause of action set forth is the break [368] ing and entering a close in each count alleged to be the plaintiffs’ close. The plaintiffs, although they are husband and wife, might jointly have a close, and this allegation is, in effect, that the close in question was theirs jointly. If it was so theirs, it was hers as much as it was his, and a cause of action for an injury to it, would survive to her if she survived him, and they might sue jointly for such injury. 2 Wils. 424; Baker & wife v. Brereman, Cro. Car. 418; 1 Chit. Pl. 74; Brownson v. Hull, 16 Vt. 309. The matters alleged beyond the injuries to the close of the plaintiffs, were in aggravation merely. Grout v. Knapp, 40 Vt. 163; and, although they may be injuries to the husband alone, would not make the declaration bad on this motion. Judgment reversed, and cause remanded.