8 Vt. 21 | Vt. | 1836
The opinion of the court was pronounced by
The counsel in this case seem to have expected that the questions raised upon the merits of the case should be considered and decided by the court in order to dispose of the case, notwithstanding the court might be inclined against the decision of the county court, upon the question of not requiring the plaintiff to prove his appointment as executor under the general issue.
The levy is first objected to as being void. It is said the officer’s return does not show that the appraisers wore legally appointed. The words of the return are, that the appraisers were “ mu
It is further objected that the appraisers were not properly sworn. The return is in these words : “ sworn in due form of law.” The expression found in judge Chipman’s forms, in this respect, is very similar, “ sworn according to law.” These forms have, by repeated judicial determinations, been declared sufficient, and the departure here is too immaterial to warrant any distinction. The phrases, “ in due form of law,” and “ according to law,-” must surely be equivalent. And the legal intendment of both is, that the proper oath was administered by the proper officer. Such have been the-decisions in this state. This disposes of all the objections urged-, against the levy.— Cleveland vs. Allen, 4 Vt. 176.
No objection is taken to the form of the deed given by the mar-shall to plantiff’s testator. It is admitted to be in compliance with the requirements of the statute of May 7, 1800, then in force. But it is objected that the marshall’s deed was void by reason of an ad
The fact too that the conveyance by the marshall is a conveyance by operation of law and not by contract between the parties, clearly puts the case out of the statute. This point has been decided in relation to conveyance by the levy of an execution, while there was an adverse possession, and holds equally not only as to this case, but all cases where the title is transferred by operation oflaw. The statute in terms is confined to conveyances between party and party by their own contract and consent. It declares the deeds, bargains, &tc. void.- — Farnsworth vs. Converse et al. 1 D. Chip. 120.
It is apparent too that the statute of 1807, as its title imports “To prevent fraudulent speculations” &c. could never have been intended to affect a conveyance in any form either by the state or United States government. The sovereignty either entire, or as in case of the United States, the sovereignty sub modo, being so clearly not within the mischief to be remedied or the import of the statute, ought not to be affected by it.
This disposes of another point which was insisted upon at bar, that the plaintiff’s title was barred by the statute of limitations. There being no adverse possession shown, the title would not be affected by the statute of limitations.
The only remaining question is whether the plaintiff declaring on his own seizin is bound to show his appointment as executor and the probate of the will under the general issue. And we have
When plaintiff declares on a seizin, in ejectment, in the life time of bis testator or intestate, and the defendant pleads the general issue, plaintiff is not bound to show his appointment. And if the defendant would drive him to that, he must plead speacially we unques &c.
In the case of Clapp, Administrator, vs. Beardsley, 1 Vt. 151, it is decided generally that in ejectment on the general issue, the plaintiff who serves as executor or administrator is not bound to show his appointment. The case does not show whether the plaintiff counted upon his own seizin or that of his intestate. It was upon that of his intestate or the case is not law. For this cause the defendant is entitled to a new trial.
The probate of the will and appointment of the executor in due form being produced, judgment was affirmed,