Holton v. Hassam

Watson, C. J. [1] The land in question is the west portion of lot No. 125 in the town of Woodbury, a public lot drawn to the support of the gospel. The action as first brought was trespass guare clausam fregit against defendant Ilassam alone, seeking treble damages under section 5842 of the Public Statutes for cutting down and destroying a large number of trees growing thereon, the time alleged being on, to wit, the first day of September, 1913, and divers other days between that time and the day of the bringing of the suit in July, 1915. After that suit was brought, the plaintiff moved that the action at law be amended into a suit in equity and transferred to the court of equity, which motion was granted. Defendant objected to such transfer, and on appeal relies upon his claim that it was improp — 328 — erly granted, because, he says, the bill contains no allegations on which equity jurisdiction can properly be based. But this claim cannot be sustained. The bill, as first filed, showed generally, and, as finally amended, specifically, that since the original act of trespass and since the action at law was commenced, defendant Iiassam had committed and threatened to commit repeated acts of trespass to the property in question, which would be destructive of the estate or inflict irreparable injury. In such circumstances equity has jurisdiction to prevent or stop the entire wrong by injunction, as is specifically prayed. Griffith v. Hilliard, 64 Vt. 643, 25 Atl. 427; Averill v. Vermont Valley R. R., 88 Vt. 293, 92 Atl. 220. [2] We need not consider the other grounds of the demurrer; for since equity jurisdiction has rightfully attached on the ground mentioned, it should be made effectual for the purposes of complete relief. Van Dyke v. Cole, 81 Vt. 379, 70 Atl. 593; Deerfield Lumber Co. v. Lyman, 89 Vt. 201, 94 Atl. 837. [3] Defendant urges in effect that the transfer deprived him of the right of trial by jury, for which reason it was in violation of the'organic law. It is true that as the case stood in the' court of law, a trial by jury was a constitutional right. But, as the plaintiff could have adequate and complete remedy only in a court of equity, and therefore his motion for a transfer to that court was properly granted, such constitutional right no longer existed. The guaranty in this respect, contained in the Constitution, has reference to the right of trial by jury previously existing according to the course of the common law. A court of chancery is not, strictly speaking, a court of common law, and consequently a trial by jury of issues of fact joined in a cause pending therein, is not demandable as a matter of right. Huntington v. Bishop, 5 Vt. 186; Plimpton v. Somerset, 33 Vt. 283; Crompton v. Hollister, 70 Vt. 633, 41 Atl. 588. For the purpose of showing a leasehold title in Adolphus ITolton, the plaintiff introduced in evidence a lease from the selectmen of the town of Woodbury to William M. Barnes, dated the 2d day of March, 1844, of "all that part of Lot No. 125 in Jane’s survey, so-called, not included in a lease dated March 5, 1833, executed by selectmen of Woodbury to Benjamin Ainsworth, said lot drawn to the support of the gospel in said town of Woodbury, with all the appurtenances thereto belonging, to him the said Wm. Barnes, his heirs, executors, administrators and — 329 — assigns, to their proper use and tenantship,” etc. The lease was for a term, “so long as wood grows and water runs,” and provided for the payment annually of a yearly rent, with a clause of forfeiture in case of default on the part of the lessee. Concluding with the statement: ‘ ‘ This lease is made in consequence of the lease of same land dated March 5, 1833, being given up, and is meant to be subject and agreeable to the present law provided for leasing of minister land in this State.” This instrument was duly recorded in the records of the town of Woodbury on the day it was executed. [4] On the 29th day of October, 1853, Barnes executed and delivered to one Edward C. Johnson, an assignment of said lea.se, which assignment was endorsed on the original lease, and was recorded in the office of the town clerk of Woodbury on the first day of November, 1853. This assignment was signed by but one witness, and shows no acknowledgment by the assignor. On the 4th day of November, 1853, Johnson assigned said lease to Samuel Britton, Wm. B. Sweet, and Charles Shipman, by an instrument in writing endorsed on the original lease. As in the preceding instance, this assignment contains but one witness, and was not acknowledged by the assignor. It was recorded in the town clerk’s office on the day of its execution. On the 17th day of November, 1863, Britton executed to Swett a transfer of Brit-ton’s right, title, and interest under said lease, which was endorsed on the lease. This transfer, though signed and sealed by Britton, contains- no witness, and no acknowledgment. On the 15th day of August, 1870, Swett, in due form, executed by endorsement on the original lease, and delivered to Adolphus Holton, his executors, administrators and assigns, a transfer of “all the right, title and interest of myself, Samuel Britton, and Charles Shipman in the within described land and premises and to this lease.” The last two transfers named were recorded in the town clerk’s office on the 30th day of July, 1914. The foregoing is all the record title Adolphus Holton had to any part of Lot 125, so far as appeared before the chancellor. Exception was taken to the findings because the chancellor received in evidence (against exceptions) the Barnes lease and the assignments appearing thereon, on the ground that the assignments by Barnes, Johnson, and Britton, respectively, were not legally sufficient to pass any interest under the lease, and on the further ground that the lease and the evidence of the acts of — 330 — the parties referred to therein and in said assignments did not tend to show any right or title to any part of the lot in question; in the plaintiff or the estate which he claims to represent. It is urged, in effect, that since none of these three assignments was properly witnessed and acknowledged, none of them had any force, referring to the statute, G-. L. 2746. By the provisions of that section, an assignment of a lease of lands, if the lease be for a longer term than one year, shall be by deed, signed, sealed, witnessed, acknowledged, and recorded, as required in the case of deeds; “and an assignment otherwise executed shall be void as against all persons but the assignor, his heirs or devisees.” But impliedly this statute further says that such an assignment, executed without conforming to these statutory requisites, shall be good and effectual in law to transfer a leasehold estate as against the assignor, his heirs, and devisees, and in favor of everybody else. Sterling v. Baldwin, 42 Vt. 306; Lemington v. Stevens, 48 Vt. 38; Buswell v. Marshall, 51 Vt. 87. This being so, it should seem that no argument is necessary to convince one of the lack of merit in both assigned grounds of the exception. [5, 6] It did not appear whether Barnes or any of the assignees of the Barnes lease, prior to Adolphus Holton, took possession of the premises described in the lease, or paid to the town of Woodbury the rent therein reserved. But Holton took possession of the premises soon after the assignment to him was executed, and he and his legal representatives continued to occupy the same, either personally or through persons holding under them, without interruption by any person, so far as appeared before the chancellor, until the fall of 1913. Holton died in 1873, and his widow, Helen A. Holton, was appointed administratrix of his estate. She continued to occupy and look after the said premises with the aid of her son, the plaintiff, until she died, when the plaintiff was appointed administrator de bonis non of his father’s estate, which office he still holds. In January, 1894, the administratrix paid to the treasurer of the town all the rent and interest on unpaid rent then due and owing to the town on that part of Lot 125 occupied by Adolphus and by his administrators after his death; the town accepted and retained the rent so paid; and all the rent which thereafter accrued was paid by the administrators to the treasurer of the town, and the same was accepted and retained by the town. We think such acceptance and retention of the rent was — 331 — not only a recognition by tbe town of Holton’s possession of tbe leasehold estate under the Barnes lease, but also of the several successive assignments of that lease, all of which must have been known to the town because recorded in its clerk’s office. In these circumstances it is not too much to say, nothing to the contrary appearing, that the law will presume a state of facts to continue which was lawful and regular in every respect, such as taking possession of the premises by the different assignees of the lease, by virtue and in the order of the different assignments, and paying rent as reserved by the lessor. Pollock, C. B., Price v. Worwood, 4 H. & N. 512, 514; Propagation Society v. Sharon, 28 Vt. 603. It is found that from the time Adolphus Holton took assignment of the lease, he and his legal representatives occupied all the land now claimed by the plaintiff, continuously, making such use of it as they desired, and the nature of the land would permit, until after Hassam acquired title to the east part of the lot in 1913; that during all that time their occupancy was open and notorious and was hostile and adverse as to all parties except the town of Woodbury, and that as against all other parties they claimed during all that time to be the owner of the premises; and that no one within that time questioned their title or interrupted, or attempted to interrupt, them in their possession and enjoyment of said premises. ■ Defendants take the further position that where, as in this case, the title to the fee is recognized by the plaintiff to be in another, he cannot gain title to the premises by means of adverse possession. In support of this position reference is made to Whittier v. Montpelier Ice Co., 92 Vt. 107, 102 Atl. 332. There is no doubt about the law as held in that case; but it goes only to the extent of saying that a lessee cannot acquire by adverse possession, rights against his lessor during the time he occupies the premises as lessee and pays rent without complaint. To the contrary of this no claim is made by the plaintiff. But he says that as against all persons except the lessor, prescriptive rights may be acquired not inconsistent with the rights of the lessor. In the view we take of this case, however, it is unnecessary to decide this question; for on the record the decree must be affirmed, irrespective of any rights which (it is claimed) may have been acquired by adverse possession. It appears that the plaintiff is claiming only such premises as were included in the Barnes lease. — 332 — [7, 8] In his answer defendant Hassam avers that there was a lease of the whole of Lot 125 from the town to Benjamin Ainsworth, of which there is no record, and claims to own all the rights of said Ainsworth in that lot, except what he has conveyed to defendant Gallagher as stated further on. It is found that at some time in 1913 defendant Hassam acquired some sort of an interest in the easterly part of said lot, by a conveyance from Fullington and Hawley; that they acquired what interest they had in the lot from Alden E. Judevine, and Judevine acquired such interest as he had thereto under a quitclaim deed from Ethan N. Ainsworth and wife in 1854. The findings state that plaintiff’s exhibits 4, 5, 9, 12, 13, and 14 show all that appeared as to Judevine’s record title. These exhibits are made a part of the findings of fact, and are before us a,s such. Hassam had no title to any part of the lot prior to May 31, 1915, except what he acquired from Fullington and Hawley. The foregoing exhibits show that, in running back Jude-vine ’s chain of title, his immediate grantors were, as stated above, Ethan N. Ainsworth and wife, by quitclaim deed dated February 13, 1854; that the immediate grantor of Ethan N. Ainsworth was Nathan Ainsworth, by quitclaim deed dated December 6, 1850; that the immediate grantors of Nathan Ainsworth were Ethan N. Ainsworth and Benjamin F. Morse, by quitclaim deed dated March 8, 1850; that the immediate grantor of Ethan N. Ainsworth and Benjamin F. Morse was Alden E. Judevine, by quitclaim deed dated October 31, 1849; that the immediate grantor of Judevine was Joses Nelson, by quitclaim deed dated April 22, 1845; and that the immediate grantor of Nelson was Isaac Pennock, by quitclaim deed dated December 7, 1840. Neither the lease from the selectmen of the town to Benjamin Ainsworth, nor any assignment of it is on record in the town clerk’s office. In view of the claim made by defendant Hassam in his answer, to own all the rights of Benjamin Ainsworth in Lot 125, except what he has conveyed to defendant Gallagher, we think it was not error to admit in evidence, when offered by the plaintiff, certified copies of the deeds in the only line of title of record under which such a claim could be based. (Indeed, as will be seen further on, defendants have no other basis of record title on which they can stand.) And on the facts shown by the record before us, the chancellor might well infer that Pennock, when he quitclaimed to Nelson, had acquired by assignment of the Ben — 333 — jamin Ainsworth lease, ali the lessee’s right, title, and interest in said lot, under that lease; and if it be necessary to the affirmance of the decree, this Court will assume that the chancellor so inferred. Not only this, but from the fact that Pennoek’s grantees have occupied the premises covered by that lease down to the present time, it is fair to presume that Pennoek entered for the whole of the unexpired term of the lease, and as assignee of the term. Bedford v. Terhune, 30 N. Y. 453, 86 A. D. 394. The foregoing negatives any force that defendants’ exception might otherwise have to the admission of the deed from Pennoek, on the ground that no right, title, or interest in Lot 125 had been shown to be in him. It is further found that the line claimed by the plaintiff to be the division line between the east and the west parts of Lot 125, namely, line-A-B-C-D on the Welch plan, is the division line from point A through B to 0, and that the division line from point C to point D is at the brow of the mountain; that said line A-B-C and from C along the brow of the mountain to point D has been recognized as the division line between the east and the west part of said lot by all persons interested in either part, except Hassam, for more than forty years; that the line C to D on the Welch plan, marked “brow of the hill,” was not made from actual survey, and while it follows the brow of the mountain approximatefy, the chancellor was not satisfied that it accurately represents the brow of the mountain, or the true division line between point C and point D. All the acts of trespass by Hassam were some distance west of the brow of the mountain. [9] Subject to exception, the plaintiff was permitted to shoAV by a witness who -worked for Judevine for three years next before his death, and had charge of his part of the lot, and continued to Avork for the estate of Judevine for eighteen years thereafter, that he helped about keeping up the fence at the north boundary of Judevine’s land in those years within his lifetime, and that the latter knew where the fences Avere being kept up at that time. This evidence was properly received. It tended to show use and occupation by those OAvning and occupying the land on the east side of the division line between the two parts of the lot; and while evidence of rise and occupation alone by those owning and occupying lands in either part Avould have no legal tendency to show where the disputed line was, yet such evidence in connection with the fact that suóh line and occupation was in — 334 — accordance with the line in dispute, would have a tendency to show where the line was. Beach v. Fay, 46 Vt. 337; Aldrich v. Griffith, 66 Vt. 390, 29 Atl. 376. It appeared from á certified copy of the record of the town, introduced in evidence by the defendants, that on October 19, 1816, the then selectmen of the town leased all of Lot 125 to one Gideon Burnham. Nothing further appeared before the chancellor with reference to this transaction. It did not appear that Burnham ever took possession of the premises under the lease, nor that he ever paid any rent to the town or to any one, nor “that said lease was ever revoked or modified, unless a revocation may be found from the fact that said town through its selectmen leased part of said lot to said William Barnes, as set forth in the findings, together with the recitals in said lease to said Barnes. If a revocation may be found from these facts, I find that there was a revocation of said Burnham lease. ’ ’ That lease was for the term “so long as wood grows and water runs,” reserving a yearly rent of six dollars to be paid annually by the lessee, his heirs, executors, administrators, or assigns, into the treasury of the town. It further provided that if it happened so that he or they could not make payment of the year’s rent when it became due, then in that case the payment of said year’s rent one year thereafter with interest at twelve per cent, per annum “shall answer to all intents and purposes as well as if paid according to the engagement.” It contained the further provision that “if defaults be made ón his or their part then this lease, so far as it concerns the committee or town aforesaid, to be void and null and of no force, and the said Gideon Burnham, his heirs, executors, administrators, and assigns and each and any of them shall never thereafter have any right, title, tenement-ship, interest, or demand of, in, or unto the aforesaid described land or any part or parcel thereof, or to any betterments, improvements or appurtenances thereto belonging, by virtue of this lease, but the disposal thereof shall then revert back again to the town aforesaid as fully and absolutely as if the lease had never been made.” [10, 11] The averment in the answer of a lease being given by the selectmen- of the town to Benjamin Ainsworth, together with the claim to own all of the lessees’ rights under it, constitute an admission of record that a lease was executed and delivered to Ainsworth; and evidence to that effect is found, not — 335 — only in the Barnes lease, but in the quitclaim deeds from Nelson to Baker and Jndevine, and from Judevine to Morse and Ethan N. Ainsworth, two deeds in defendants’ chain of leasehold title (under Benjamin Ainsworth) of the east portion of Lot 125. In the former of these two deeds the particular description of the land conveyed, concludes: “intending by this to be the same premises occupied by the late Benjamin Ainsworth to the time of his death. ’ ’ The latter contains a statement to the same effect. Since defendants claim title under these deeds, they are bound by the recitals therein, by way of estoppel. Davis v. Moyles, 76 Vt. 25, 56 Atl. 174. They are also estopped from denying the right of the town to give the Benjamin Ainsworth lease because of the previously executed Burnham lease covering the same land. To hold that they could set up a leasehold title under a lease of earlier date, executed and delivered by the town to a third person under whom (as will be seen) they have no standing, would be tantamount to saying that those holding under a lease may deny the lessor’s title, a position the mere statement of which shows its unsoundness in principle. Blalke v. Howe, 1 Aik. 306, 15 A. D. 681. This, however, applies to only so much of the lot as is within the Ainsworth lease. [12] The Barnes lease was given by the town on its own account, and the same was ever thereafter operated under by both parties thereto. This the town had no right to do if it would still hold the lessee in the Burnham lease, his legal representatives or assigns, for rent thereunder. We think that in the circumstances appearing of record before us, the giving of the Barnes lease was an act showing unmistakably the resumption of possession of the lot by the town, and warranted a finding that the Burnham lease had become null and void under its terms relating to forfeiture, or had been abandoned by mutual consent. Pelton v. Place, 71 Vt. 430, 46 Atl. 63; Biggs v. Stueler, 93 Md. 100, 48 Atl. 727. Let it be either way, it falls within the term “revocation,” used by the chancellor; for a revocation may be by operation of law, or by act of the parties. [13] On May 31, 1915, Melvin G. Morse executed and delivered to Hassam a quitclaim deed.of all his interest in and to Lot 125, stating therein: “Being the same lot leased by the selectmen of Woodbury to one Gideon Burnham.” On the next day this deed was recorded in the land records of the town. On June 18, 1915, Hassam gave to defendant Gallagher a quitclaim — 336 — deed (which was recorded on the same day) of an undivided one-half interest in that part of this lot situated on the west side of the main highway leading from Hardwick to Woodbury, stating therein: “said land being a part of Lot 125 and deeded me by M. G-. Morse in his quitclaim deed dated May 31, 1915.” Nothing further appeared in connection with this transaction. Gideon Burnham was uncle to the mother of Melvin G. Morse. She died before he gave the quitclaim deed to Hassam as mentioned above. The findings of fact state: “ It did not appear that said Morse had any interest in or title to said lot unless that fact would be inferred from the fact ’of his relationship to said Burn-ham as stated above.” But such an interest in Morse is not to be inferred from the mere fact of his relationship. Although the presumption of law is that every deceased person leaves heirs who are capable of inheriting, or next of kin, there is no presumption that a person of mature years left no children, nor father, nor mother. Burn-ham may have left heirs of a higher degree than brothers and sisters, or nephews and nieces. Since the defendants claim the l’ight to take from Gideon Burnham through a grandnephew of Burnham, they have the burden of proving facts necessary to sustain such right. Delany v. Noble, 3 N. J. Eq. 441; Stinchfield v. Emerson, 52 Me. 465, 83 A. D. 524; Mitchell v. Thorne, 134 N. Y. 536, 32 N. E. 10, 30 A. S. R. 699; 18 C. J. 872. It follows that for this reason, as well as for the reason of a revocation of the Burnham lease, the Morse deed to Hassam conveyed nothing, and consequently the Hassam deed to Gallagher conveyed nothing. As a conveyance of land within the limits of the plaintiff’s leasehold estate here in question, or any interest therein, each of said deeds is without force and void. In view of the foregoing holding, the questions presented on the exception to the finding that the recording of the Hassam deed to Gallagher constitutes a cloud upon plaintiff’s title, need no special consideration. [14] Defendants rely on many other exceptions, all of which we have carefully examined. They are all in effect disposed of by what we have already said; or no ground of the exception was stated when taken; or (as in a number of instances) exceptions were taken to findings made as not supported by the evidence, regarding which suffice it to say that the transcript is not before us for such purpose, and so it cannot be said in review — 337 — that the findings were not all warranted by the evidence. Defendants say in their brief that they requested the chancellor to send up the transcript for this purpose also. But the making of such a request is not shown by the record. Decree affirmed, and came remanded.