10 Vt. 220 | Vt. | 1838
The opinion of the Court was delivered by
In regard to the deed from John North to Comfort Carpenter, in the year 1794, it no doubt left North standing in the relation of tenant by sufferance to Carpenter. The testimony offered by plaintiff, to show that deed fraudulent, goes no farther than to show that North claimed it to
We have no hesitation in saying, that Barnum, by becoming the administrator of John North, did preclude himself from acquiring title, in his own right, to any portion of the estate of which North died seized, of which the land in controversy was a portion. And we think that the fact, that he inventoried fifty acres of lot numbered eight, as belonging to that estate, in connexion with the fact, that John North was, at the time of his death, in possession of fifty acres, the south half, and being the land in controversy, goes conclusively- to show, that Barnum did not, at that time, expect or intend to acquire title in his own right. John North levying his execution against Carpenter, upon the north half of the lot, would not show that he intended to look to that land for his redress, instead of the south half; nor would it estop him from disputing Carpenter’s title to this land. The Norths levied, each upon the other’s land, no doubt, in order to avoid the estoppel in law, and at the same time, exhaust any possible title which might be in Carpenter.
The possession of Barnum would be in trust, for those interested in the estate of John North. In that view, title acquired by such possession, or by purchase, would enure for the benefit of the estate. Thus the title derived from Simeon North cannot avail him or his heirs, or their assign
It is not necessary to decide on the legality of those levies. They would seem to be incurably defective. The officer’s return not being signed by him, on the original execution, and neither the execution or the return being recorded in the office of the clerk from which it issued, would seem to render the whole proceedings a nullity. But this, as was considered by the court below, is not important.
In the year 1811, when Barnum closed his administration account, the title to the land in controversy had become perfect in the estate of John North. Barnum was then in possession, as trustee for that estate, and, so far as appears from the case, acknowledging the title of the estate.
Whether he has acquired title since that time, does not appear. That after his relation of trustee had ceased, he might acquire title by the statute of limitations, the heirs being of full age, is perhaps consistent with the doctrine of the case of Willison v. Watkins.
Judgment reversed-