Avery v. Hall

The opinion of the court was delivered by Barrett, J. From the time the plaintiff’s title accrued, he was entitled as tenant in common with the defendant. The defendant was then in possession, and continued thereafter in possession. She was holding for herself and co-tenant. She would not be holding adversely to him until she had manifested effectually that she was in fact holding in exclusion of him, and in denial of his right. The true idea is well illustrated in Dodge v. Page, 49 Vt. 137. In this case the evidence and facts fail to show or constitute a denial of his right by the defendant, or that she was claiming to be in possession in exclusion of him according to his right. She was rightfully in possession in virtue of her title as tenant in common, and was under no obligation to give up actual possession. She was holding ‘‘per my, et per tout," and was entitled so to hold till partition should be made. What she said, therefore, is to be construed as only expressing a hope that she might be able to pay off a debt and judgment in virtue of which the plaintiff had become tenant in common with her. This was no denial of right, or even of co-possession. Judgment reversed, and judgment for defendant.