16 Vt. 313 | Vt. | 1844
The opinion of the court was delivered by
The plaintiff at the trial, as well as at the commencement of his action, in an action of ejectment, must have title to the land, or he cannot recover.
In this case, had the plaintiff, at the time of the trial in the county court, a right to the possession of the demanded premises 1 This must depend upon the validity of the proceedings of the probate court.
The probate court, though a court of limited jurisdiction, is a court of record, and its doings, unappealed from, when within its jurisdiction, are as conclusive as those of other courts. The title, which the heir has to the estate of his ancestor, is cast upon him by operation of law; but the preliminaries, before coming to the full enjoyment of it, are to be settled by the probate court.
Unlike the common.law, our statute has provided for holding the property in suspense, to answer other claims, which take precedence of the rights of the heir, — the estate, real and personal, being charged with the payment of debts and costs of administration. When the estate is discharged from these claims, it becomes the duty of the Probate Court, in such way as the statute has provided, upon application, to place the several heirs in possession of their re-: spective shares. And for this purpose chapter 53, § 2, of the statute provides that, after all the purposes, for which the estate in the first instance is holden, have been answered, “the probate court shall,by a decree for that purpose, assign the residue of the estate to such persons as are by law entitled to the same,” — “and such persons shall have a right to demand and recover their respective shares from the executor or administrator, or any other person having the same.”
This land having been levied upon by the administrators, was by them holden in the same manner, and for the samé purpose, as land of which the intestate died seized. The title is in the heirs for all purposes, except for paying debts and charges, and when these are paid, or when the administrators shall have other effects in their
For the purpose of recovering the rents and profits of this land the administrators were under no necessity of bringing this action ; nor can they recover for those, unless they are entitled to the possession of the land. Stone, Ex’r, v. Griffin, 3 Vt. 400. Burton v. Austin et al., 4 Vt. 105.
They might have proceeded under the statute to recover the rents and profits of this land, after it was set off. The use and occupation of the land, set off on the execution, should go into the common fund, for the common benefit of all the heirs; and, for anything that appears, it may still be recovered for that purpose. But in this action it cannot; — the title having gone from the plaintiffs it carries with it all the incidents to the general judgment.
But it is insisted, that, as the defendants are in possession of four sevenths of the land, to which they have no title, the plaintiffs ought to recover for so much at least. But the same objection applies to this part of the land as to the other. The plaintiffs must recover upon the strength of their own title, and not upon the weakness of the defendants’ title.
If the proceedings of the probate court divested the plaintiffs of the right of possession of the defendants’ part of the premises, it must of course of the whole ; for it was the result of the same decree. The other heirs are provided, by law, with their remedy. They may call upon the defendants, who are in possession of their respective shares; and the fact that they may call upon whoever has the possession ought to be conclusive upon the administrators, that they cannot.
Judgment of the county court affirmed.
