Aldrich v. Griffith

THOMPSON, J. The defendant claims title to the locus .in quo by adverse possession for fifteen years, by himself .and his grantors, under color of title. He contends that the warranty deed from Arnold to the Winchesters and Horton, ■executed and delivered in A. D. 1864, and the conveyances to him in A. D. 1873 by Arnold’s grantees, .gave color of title. In these conveyances the land conveyed is specifically described by courses and distances. One •course runs “to the north line” of Mt. Tabor, “thence east •on the north line of Mt. Tabor,” etc. The division line between the towns of Wallingford and Mt. Tabor is the north line of Mt. Tabor. It was conceded that the true northwest corner of Mt. Tabor was a marble post in the railroad embankment. The plaintiffs claimed the division line between the towns was a line running from this corner •easterly to a spruce stub or tree, while the defendant claimed it was a line running from this northwest corner easterly to a stone monument something over a hundred rods north of the spruce tree. Evidence was introduced tending to prove the claims of each party in this behalf. If the division line is located as claimed by the defendant, the courses and distances called for by his deeds, and the deed from Arnold, are satisfied by running to this line and on it, and the locus in quo is included in the land described in these deeds. If the line is located as claimed by the plaintiffs, and the distances called for by these deeds must yield to this location of — 398 — the line as the true north line of Mt. Tabor, then the locus in quo is not included in the land described. The plaintiffs now insist that the jury have found the true division line between the towns, to be as claimed by them, and that the distances called for by these deeds must yield to the actual location of the line established by the verdict, and hence the defendant and his grantors never had color of title to the locus in quo. The words “north line of Mt. Tabor” would be equally satisfied by a line which was in law the legal boundary, or by a line which was considered and reputed to be such boundary, at the time of the execution and delivery of the deed from Arnold. The evidence tended to show that prior to A. D. 1858, a controversy had existed between these towns, in respect to the location of the boundary between them. About A. D. 1858 a petition was pending in court to-have it established, and at that time each line, as claimed by the plaintiffs and by the defendant, was surveyed and marked more or less, but the committee appointed by the court were unable to agree in respect to which was the true line. After a time the proceeding in court was discontinued. Ever since to the present time, Mt. Tabor, its officers and inhabitants, have claimed and insisted that the true boundary was-the line claimed by the defendant. Thus a latent ambiguity was disclosed which could only be cleared up by oral evidence. The case comes exactly within the familiar maxim as expounded by Lord Bacon. Ambiguitas verborum latens verification su-pfletur; nam quod ex facto oritur ambiguam verification facti tollitur.” “Ambigtiiias latens is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed, that breedeth the ambiguity.” Bac. Max. reg. 25. Although the presumption upon the face of the deed would be that the “ north line of Mt. Tabor” therein mentioned,. — 399 — was the' true line, yet if the line claimed by the defendant was shown to exist, and was adopted by Mt. Tabor, its inhabitants, and the parties to the deeds, then that would be the boundary referred to in the deeds, and would prevail. This view is in accord with Putnam v. Bond, 100 Mass. 58, and Hall v. Davis, 36 N. H. 569. The deeds would thus, give color of title. Putnam v. Bond, supra. This phase of the case should have been submitted to the jury with proper instructions, as the defendant’s evidence tended to-show that the parties to the deeds at the time they were executed and delivered, understood the north line of Mt. Tabor to be the line now claimed by the defendant to be the boundary between the towns. The plaintiffs further contend that as the jury have found the true line to be the line running from the marble post to the spruce tree, and as the locus in quo is between this line and the line for which the defendant contends, it is therefore in Wallingford, even though the latter line be taken as the boundary intended in the deeds, and that inasmuch as these deeds were not recorded in Wallingford, they gave no' color of title to the locus. To give color of title, it is not necessary that the claim should be under an instrument containing the statutory requisites to convey land. It is enough that the claim of title be under an instrument in writing, and defining the extent of the claim. Beach v. Sutton, 5 Vt. 209; Swift v. Gage, 26 Vt. 224; Ang. Lim. (6th Ed.) 404 and note 2. The principal reason for requiring such instrument to be recorded would seem to be to give the real owner of the land therein described, notice of the claim made, so that he might assert his right thereto. But a deed not executed according to the statute requirements is not entitled to registry, and consequently the record thereof is not constructive notice to any one, as to its contents. Isham, Admr., v. Bennington Iron Co., 19 Vt. 230; Pope v. Henry, 24 Vt. 560. — 400 — Hence the logical conclusion is that a record in the proper office is not necessary to give color of title. And so hold the authorities. Beach v. Sutton, 5 Vt. 209; Spaulding v. Warren, 25 Vt. 316; Swift v. Gage, 26 Vt. 224; Oatman v. Barney, 46 Vt. 594; Campbell v. McArthur, 2 Hawks 33; 11 Am. Dec. 738 and note; Wood v. Montevallo Coal & Transp. Co., 84 Ala. 560; 5 Am. St. Rep. 393; Ang. Lim. (6th Ed.) s. 404, note 2; Wood, Lim., 530. In Hodges v. Eddy, 38 Vt. 345, Poland, Ch. J., defined color of title to be a “ Deed or survey of land, placed upon the public record of land titles, whereby notice is given to the true owner, and ■all the world, that the occupant claims title.” If by this, the court intended to limit color of title to an ■occupancy under a deed executed as required by the statute, or a survey, duly recorded, it is sufficient to say that the •question as to what kind of an instrument would give color •of title, was not raised in that case, and the remarks of the ■court upon that subject were wholly obiter dictum. The evidence tended to show that prior to and at the time of the execution of the deed from Arnold, the land described in it was clearly indicated by visible monuments entirely -around it, consisting of old lines of spotted trees, unmistakable and easily followed ; and that in A. D. 1864, immedi•ately after taking the deed, Horton for himself and his co-owners, took possession of the premises within these lines, and occupied parts thereof, claiming title under his deed, to the whole, until the conveyance to the defendant in 1873, when the latter went into the possession of the premises under his deeds, and has continued in possession thereof to the present time, to the marked lines, claiming title to the whole continuously. The evidence also tended to show that from a time considerably before March 31, 1864, the date of the deed from Arnold, to the time of the alleged trespasses, the defendant and his grantors had been in the open, hostile, — 401 — continuous and uninterrupted possession of the land described in the deed from Arnold, and to the marked lines, claiming title thereto, and that these lines included the locus of the alleged trespasses. The evidence clearly tended to show color of title both in Horton and the Winchesters, and in the defendant. If the land was not in the actual possession of the true owner, when they took possession, their occupation and use of a part thereof, claiming the whole under color of title, would give them constructive possession of the whole, and such possession, if open, notorious, continuous, uninterrupted and hostile, for fifteen years, would give good title, even against the true owner. Pearsall v. Thorp, 1 D. Chip. 92: Beach v. Sutton, 5 Vt. 209: Crowell v. Beebe, 10 Vt. 33; Ralph v. Bayley, 11 Vt. 521; Spear v. Ralph, 14 Vt. 400; Spaulding v. Warren, 25 Vt. 316; Swift v. Gage, 26 Vt. 224; Jakeway v. Barrett, 38 Vt. 316; Hodges v. Eddy, 41 Vt. 485; Webb v. Richardson, 42 Vt. 474; Wash. R. P. (3rd Ed.) 135, (*496); Hicks v. Coleman, 25 Cal. 122; 85 Am. Dec. 103; Wood v. Montevallo Coal & Trans. Co., 84 Ala. 560; 5 Am. St. Rep. 393. The evidence tended to show not only such possession by the defendant and his grantors together, but by the defendant alone. He also claimed title to the locus in quo by adverse possession by himself and his grantors for fifteen years, independent of their alleged possession under color of title, and his evidence tended to prove such possession, and acts of use and occupation by himself, Arnold and Horton, and those acting under them, as support this contention. But the plaintiff insists that the interval of time between the various acts of ownership and possession relied upon by the defendant in support of this claim, was such as to break the continuity of possession necessary to acquire title in this way. This question was discussed by Peck, J., in Webb v. Richardson, supra, and he there lays down the true rule applicable to a case of this kind. He says : — 402 — “To constitute a continuous possession it is not necessary that the occupant should be actually upon the premises continually. The mere fact that time intervenes between successive acts of occupancy does not necessarily destroy the continuity of the possession. The kind and frequency of the acts of occupancy necessary to constitute a continuous possession. depend somewhat upon the condition of the property and the uses to which it is adapted in reference to the circumstances and situation of the possessor, and partly on his intention. If in the intermediate time between the different acts of occupancy, there is no existing intention to continue, the posession or to return to the enjoyment of the premises, the possession, if it has not ripened into a title, terminates, and cannot afterwards be connected with a subsequent occupancy so as to be made available towards gaining title, while such continual intention might, and generally would, preserve the possession unbroken. The principle is tersely stated in the civil law, thus : A man may retain possession by intention alone, yet this is not sufficient for the acquisition of possession.” In Patchin v. Stroud, 28 Vt. 394, this court held that a lapse of fifteen years between any of the acts of possession does not per se, as a matter oí law, show conclusively an abandonment of the first possession, in a case resting upon adverse possession, but that that was a question of fact for the jury. The evidence of the plaintiffs tended to controvert that introduced by the defendant in. support of his claims in respect to his title by adverse possession, whether obtained under color of title or otherwise. The evidence standing thus, it was for the jury to determine, under proper instructions, whether the defendant had acquired title by adverse possession, and the refusal of the court to submit this question to them was error. Stevens v. Dewing, 2 Aik. 112; Beach v. Sutton, Spear v. Ralph, Webb v. Richardson, and Wood v. Montavallo Coal and Trans. Co., supra; Plimpton v. Couverse, 42 Vt. 712; Hale v. Rich 48 Vt. 217; Soule v. — 403 — Barlow, 49 Vt. 329; Patchin v. Stroud, supra; Lelinas v. State Agricultural Society, 60 Vt. 249. The witness, Miller, was permitted to testify in respect to the number of grains in the mark in the block of wood cut out, he, apparently, having first refreshed his recollection by the memorandum made at his request by Mr. Shaw, at the time when the block was obtained. In this the defendant says there was error. It was ¿^t necessary that the memorandum should have been made by the witness to entitle him to refer to it. Davis v. Field, 56 Vt. 426. Where the witness neither recollects the fact nor remembers to have recognized the written statement as true, and the writing was not made by him, his testimony, so far as founded upon the written paper, would be hearsay and inadmissible. 1 Greenl. Ev. (12th Ed.), s. 436. But in this case it does not appear that the witness did not have a present recollection of the facts to which he deposed, independent of the memorandum, nor does it appear that he did not then know the memorandum to be true. Again, the exceptions do not disclose that the memorandum related to the subject about which the witness testified, or that in giving his testimony he relied upon anything contained in it to refresh his memory. We find no error in the admission of this testimony. While evidence of use and occupation alone by those owning and occupying lands in either town adjacent to the other town would have ho legal tendency to show where a disputed line was, yet such evidence, in connection with the fact that such line and occupation were in accordance with the line in dispute, would have a tendency to show where the line was. Beach v. Fay, 46 Vt. 337. As we construe the exceptions, such was the character and tendency of the testimony of the witnesses, Allard, Colby and Graves, to which the defendant excepted. There was no error in its admission. The defendant also excepted to the admission of the an — 404 — cient book, designated as “Field Book,” on the ground that its authenticity had not been established. Its competency was a preliminary question for the trial court to determine, i Thomp. Trials, s. 324; 1 Best Ev., *300. No evidence appearing to the contrary it was admissible, if its genuineness was established prima facie. Among other things it purports to be a field book of ancient date, showing the survey of certain divisions of lots in Wallingford. It came into possession of the present towii clerk of Wallingford, as" town clerk, with the other books of record of the town, “ a large number of years ago.” Several deeds of land in Wallingford, executed as early as A. D. 1845, introduced in evidence, referred to a field book. The genuineness of a document of this kind, on its face purporting to be sufficiently ancient, is shown prima facie by proof that it comes from the proper custody. 1 Greenl. Ev. (12th Ed.), s. 142. Hence we think the book was properly admitted. Hart v. Gage, 6 Vt. 170. Judgment reversed and cause remanded for a new trial.