Muir v. Bissett

[291] The opinion of the court was delivered by Redfield, J. The plaintiff’s wife is the owner of the premi- • ses. The husband attempted to lease them to the defendant for the term of one year, and signed a written contract for that purpose. Before anything was done under the contract, the defendant was notified that a lien on the crops, as security for the rent, was a part of the contract, and accidentally omitted in the writing, that the premises were the property of the wife Judith; and the defendant was forbidden to enter upon the premises. The written contract was inoperative and void as to Judith; and the defendant, an intruder in entering upon the premises. The defendant took possession of the house in April, and, in July after, cut hay' upon the farm, and afterwards sold it, for which this action of trover is brought. It cannot, we think, be claimed that the writing or lease gave character to defendant’s acts of possession. The defendant’s intrusion into the house was one distinct act of trespass ; the cutting of grass in the meadow was another. If the defendant disseised the plaintiffs in the whole premises, then the plaintiffs could recover in an action of trespass quare clausum only for the first act, unless they re-entered before suit, when they could recover for all and every act. This rule of the common law, based on artificial and subtle fiction, is the law of this State. Cutting v. Cox, 19 Vt. 517 ; Stevens’ Exrs. v. Hollister, 18 Vt. 294. Yet, in the latter case Williams, C. J., dissented and vindicated the more sensible rule — certainly more consonant with justice. The case shows that the defendant’s entry upon the premises was forbidden by the plaintiff Philip, because he had not inserted in the writing a lien upon the crops, as agreed; that the property, both real and personal, was the sole and separate property of the wife Judith ; that “ the writing was void as to Judith ”; and there was no “ privity of contract or estate ” between defendant and Judith. A suit was pending, at the time the hay was converted, to oust defendant from the. possession. The exceptions state that “ the court found that the possession of the premises aforesaid by the defendant was with the knowledge and acquiescence of the plain.tiff Judith.” If that statement means that the said Judith had [292] so far “ acquiesced” that she had adopted the contract of her husband and made it her own, then the defendant was the tenant of the said Judith, for the year, and entitled to the annual crops. But the exceptions also state that at the time of the conversion Judith was pressing the most summary process of the law to eject defendant from the possession. This was hardly “ acquiescence.” If, as the proof tended to show, the defendant intruded, without right, into the possession, and held it against the will of the owner, the act was wrongful, and the intruder gained thereby no right of property in the premises or its products. And if the owner became wholly disseised, in an action of trespass, it is probable that the owner could, without re-entry, recover only for the act of disseisin, which was.the first entry. But this by no means determines that the disseisor acquired property rights in the standing grass or. timber on the premises. They pertain to the realty, and, when severed from it, continue to be the property of the owner of the land. And in this case, if the entry upon the premises by the defendant was wrongful, and continued against the will of the plaintiff Judith, or, if he entered with her consent, upon the condition that she should have the crops till the rents were paid, then the conversion of the hay by defendant to his own use was wrongful as to the plaintiff Judith. Judith was the owner of the property, and continued so, unless she became party to a contract by which she parted with her title. In Pratt v. Battles, 28 Vt. 685, the court, Isham, J., suggest a doubt whether trespass can be sustained for removing wood cut on premises by one long in adverse possession of the premises under claim of title. But the court adjudged in that case that the plaintiff could recover only limited damages for removing the wood a short space on the same farm. The question was not made in argument; and the case, in its facts, differs widely from this. We think there is no fiction of the law that would prevent the plaintiffs’ recovery, unless they have parted with their right and title. Judgment reversed, and cause remanded.