Swerdferger v. Hopkins

TAFT, J. I. The premises are described in the declaration as the lot deeded to the plaintiffs. The plaintiffs offered in evidence a deed from one Perley to the feme plaintiff; objection being made upon the ground of variance between the contract described in the declaration and the one offered in evidence, the court granted leave to amend the declaration, so as to describe the lot as the one deeded — 144 — to the feme plaintiff. This amendment did not change the parties nor the nature or cause of action. The court, therefore, had the legal right to permit the amendment to be made, and if the court had power to allow the amendment, its action was discretionary and not revisable. There was no error in granting the motion to amend. Bowman v. Stowell, 21 Vt. 309; Bates v. Cilley, 47 Vt. 1. II. Can the husband and wife join as plaintiffs ? Such was the law prior to No. 140, Acts 1884, as held in Smith v. Fitzgerald, 59 Vt. 451 ; it is urged that by section 2 of that act the law was changed, and that an action quare clausum for trespass upon the wife’s land must be brought in her name alone ; such might be the result if the property was held to the sole- and separate use of the wife, and the husband had no marital rights therein. It is unnecessary, however, for us to pass upon the question, for if the property in the case at bar was not held to the sole and separate use of the wife, the husband vfas properly joined. It does not appear from the record whether it was so held or not, for she may have acquired it during coverture by gift from her husband. If she did, the action was properly brought. As we cannot presume error, we must sustain the ruling of the court below. QUESTIONS OF EVIDENCE. III. 1. The plaintiffs claim that they and the grantors in their chain of title had occupied the close in question to the fence on what is called the “plum tree line,” and claimed title to the land by deed, and by adverse possession. John Nichols, a-witness, called by the plaintiffs, who formerly owned and occupied the plaintiffs’ premises, testified under exception that when he bought the place he understood from the description in the deed that the fence marked the line of his land.. The defendant insists that the- understanding of the witness was not admissible; to acquire title by adverse — 145 — possession it is necessary that the party occupies the land claiming it, and we think the understanding of where the line of his land was, in connection with his testimony relating to the occupation oi the land, and that he claimed it, was admissible. We infer, if necessary, that there was testimony in the case tending to show both the occupation of, and claim to, the land. His understanding of where the line was was material; he would be more likely to occupy the land to the line where he understood it to be than otherwise, and we see no objection to the testimony showing what his understanding was in respect to it. 2. There was no error in admitting the testimony of William Fort. He, with his wife, was in possession of the premises now claimed by the plaintifts, and his testimony tended to show that he occupied and claimed the premises to the line as now claimed by them. Judevine was then claiming a portion of the premises, and the testimony of the witness Fort tended to show that he, the witness, upon the premises, made claim to the land as far as the line now claimed by the plaintiffs. Whát he said to Judevine upon the occasion testified to, in making known his claim and the extent of it, was legal evidence, not of the truth of what he said, or, that he had any right to occupy as far as the line, but that he, at the time, made claim to the land that was .fenced in by the fence standing on the plum tree line. The testimony should have been limited to this latter fact; it does not appear but that it was. The fact that he claimed the land was competent to be shown, even if it necessarily' involved what he, at the time, said. Kimball v. Ladd, 42 Vt. 747. 3. One Perley Owned the plaintiffs’ premises from January, 1870, until April, 1889, and Judevine owned the adjoining premises for several of the intervening years.. The exceptions show that about the year 1876 Perley and Jude-vine, when owning the respective premises, had a contro — 146 — versy in regard to the line in question. To settle the dispute, they agreed upon a certain line ; the agreement was reduced to writing and left with Mr. Hathaway, the town clerk. The contents of the written agreement was a pertinent question upon trial. No loss of it was shown, and the court ruled that parol evidence of its contents was not admissible. This agreement as to the division line was recognized by both Perley and Judevine as late as the year 1881. The testimony of the witness Curtis, tending to show the statements of Judevine and Perley made in connection with what they were doing upon the land, was objected to. We cannot say that it was error in excluding the statements of Mr. Judevine, for it is not shown what theywere; for aught that appears, they may have been in favor of the defendant’s claim and therefore not injurious to him, and they may have been wholly immaterial. The statements of Mr. Perley tended to show the contents of the written agreement which had .been made between him and Judevine. The witness testified that Perley said he wanted the old post holes marked, that Judevine might die and some dispute arise about the corner, and that Judevine might disregard the agreement that he had made with him, and that he, Perley, would have the corner marked. This was testimony strongly tending to show that the plum tree line was the one that had been agreed upon by the written contract. This testimony had already been ruled inadmissible, and it should have been excluded. Perley’s statements made at the same time, in relation to his having always occupied the land to the fence on the plum tree line, was inadmissible. While statements are sometimes admissible as showing what the party’s then claim to the land may be, his declaration as to what he had done in the past with reference to the transactions, is not admissible. 4. The plaintiffs being properly joined as parties, the wife was a competent witness. — 147 — 5. The testimony of the witness Taylor, which was objected to, was proper matter of cross-examination ; he was called by the defendant, and testified that Perley pointed out the boundary of his lot. The plaintiff had a right in cross-examination to ask the witness what Perley said about the boundary of the lot when pointing it out. 6. One Johnson, called by the defendant, testified that when he worked for Judevine he piled lumber belonging to Judevine upon the lot in dispute. We understand the cross-examination, which was objected to by the defendant, had reference to the matter of this same lumber and its being piled there, and was therefore a proper matter of cross-examination. 7. The question as to the testimony of the witness Pike was waived. 8. The cross-examination of thq defendant was objected to, upon the ground that it put into the case the declarations of the plaintiff husband in his own favor. There was no error in the cross-examination. The plaintiffs had a right to examine the defendant upon any material matter in the way of cross-examination, whether he had testified upon the point or not; and they had a right to show that the defendant knew that the plaintiffs, at the time in question, made claim to the premises to the plum tree line, and this was the effect of the testimony. It should not have been admitted to establish the fact of where the line was located, but to show that the plaintiffs claimed the premises in dispute, as it was a material question whether they claimed to occupy the land adversely. 9. The defendant claims that the plaintiffs were permitted to give testimony in rebuttal relating to certain measurements from the plum tree line to certain corners, for the purpose of showing that certain trespasses were upon land which the plaintiffs claimed, and also the testimony of .their brother George that he had never seen Judevine’s man mow — 148 — the disputed tract, nor Mr. Pike tear down the fence, and also certain testimony of the plaintiff Simeon as to the condition-of the tract in question when the place was deeded to his wife, and as to certain other measurements. The defendant insists that none of this testimony was in rebuttal. It was admitted not in the exercise of discretion, but as a matter of strict legal right. It is true the exceptions show that the plaintiffs in their opening had put in testimony tending to show certain distances and places claimed to have been trespassed upon, and the kind and character of the trespasses and their occupancy of the disputed tract, etc. While the testimony objected to may have been in the same line as that given by the plaintiffs in their opening, it does not appear from the record that it was not strictly in rebuttal of what some of the defendant’s witnesses had testified to. There is no recital of the testimony given by the defendant and his witnesses upon these points, and we cannot say, therefore, that there was error in admitting the testimony in question. 10. The record is not full enough to enable us to determine whether there was any error in respect to the testimony of the plaintiff Simeon in regard to the application of Eldred to the selectmen; no error appears. This disposes of the questions of evidence which have been made in argument. IV. The fourth point in the brief for the defendant is, that the charge as given upon the subjects noted upon page ten of the exceptions was not warranted by the facts. The exceptions stated "on page ten are to the'refusal of the court to charge in accordance with the requests, and to the charge as given upon the points covered by the requests. These questions are not considered, as no copy of the requests nor the charge has been furnished us. V. The motion for a judgment at the close of the plaintiffs’ evidence was waived as the defendant introduced evidence subsequently, and as the motion to order a verdict at — 149 — the close of all the evidence was based upon the misjoinder of parties, that question has already been disposed of adversely to the defendant. The defendant filed a motion in arrest of judgment, upon the ground that the declaration did not sufficiently describe the locus in quo, and cites in support of this claim Davis v. Judge, 44 Vt. 500. That was an action of ejectment for the recovery of the possession of land, and involved the question of title. In such actions it is necessary to describe the premises with the particularity stated in the opinion in that case; but in an action of trespass quare clausum, it has been held in this state, Rice v. Hathaway, Bray. 231, that the premises were well described in the following words— “The close of the plaintiff situate, lying and being in St.. Albans.” The premises in this case are described as “the plaintiff’s close, situate in the town of Hardwick,” and also as a part of lot No. 3 in the ninth range of lots, with a reference to the deed to the plaintiff Sarah, recorded in book 16, page 361. We think this description, under the authority of the case cited, is good. VI. The sixth point made in defendant’s brief it is unnecessary to consider, in view of the holding upon the question of parties. Judgment reversed and cause remanded. ■ Rowell, J., being absent in county court, did not sit.