12 Vt. 205 | Vt. | 1840
— It appears to us that the plaintiff was entitled to have the jury instructed as he requested, and that the attention of the jury was not directed to the question in dispute.
The plaintiff claims as administrator de bonis non of John North. The claim of the defendant was, probably, under a deed from Stephen Barnum, although this does not appear from the case, as now presented. Stephen Barnum married the widow of John North, and was the former administrator of his estate. When this case was before us two years ago, it was’ decided that if John North was in possession of the premises in dispute, and. died seized, Stephen Barnum, his administrator, who married his widow and remained in possession, could not purchase in a title for his own benefit. To avail himself of this decision, the plaintiff introduced testimony to prove the seizin and death of John North, the marriage of his widow and the possession of the administrator. This possession gave an apparent title to the representatives of the intestate. The defendants their introduced a deed from the intestate and his brother, to Comfort Carpenrer, dated 28th April, 1794. Under this deed, a part of the premises have passed away from the representatives of John North, by a mortgage from Carpenter to one Doolittle. The part thus mortgaged to Doolittle, is not now in controversy. There was a levy of an execution in favor of Simeon North, on the premises in dispute, but, as this was defective, it conveyed no title. The defendants acquired no title under Carpenter, and the deed to him was of no consequence, unless it was to show a title out of the plaintiff. The possession of John North, and the subsequent possession of his administrator, Stephen Barnum, for fifteen years after the deed to Carpenter, perfected the title of the plaintiff against Carpenter and all others, and the jury should have been so instructed and their attention drawn to that fact. The levy of the execution of John North against Carpenter, was on the north part of lot No. 8. It was, therefore, wholly immaterial whether he claimed under that levy, if, in point of fact, he was in possession of the south half, claiming title thereto. The court below, therefore, were wrong in directing the attention of the jury to the levy of the execution on the north part.
If there was any importance attached to the deed to Carpenter in 1794, the testimony offered by the plaintiff,to show that he repudiated and rejected the claim of Carpenter and held adverse to him, should have been admitted.
The judgment of the county court is reversed..