| Vt. | Feb 15, 1875
The opinion of the court was delivered by
Several points were made and debated in the argument, which, in the view we take as to certain controlling-features of the case, are not necessary to be passed upon in order to the decision of the case. Those views result from grounds so well established in the law as not to require discussion or the citing of books.
It is claimed by the defendants that the lot in question is the one into which John Wright entered in 1828, and that he entered in virtue of his right under the will of his father. It was designated and known as 1$lo. 55, under a certain supposed' division called the 6th; and no other land in the town was designated in that way. Nothing is shown to the contrary of this. This identifies the territory which is claimed by the plaintiff under title derived from said Josiah, Sen., as being the same that is claimed by the defendants under title derived from said John, or acquired by adverse possession in virtue of the survey and claim made by said John in 1849.
Whatever right said John derived from his father, was subject to the results of administration according to his father’s will; and until distribution should be made, his right was only that of tenant in common with the others who had like title and interest. Hence, any entry and acts of his, or of anybody under him, down to the disposition of the real estate in pursuance of the will, could
The recording of the survey in 1849 was the first indication of a claim by him in severalty and exclusively of the lot in question ; and that claim should be referred to his title and right as legatee under the said will. Acts of possession, either with or without color or claim of title, could not inure to the gaining of title so long as the'property was subject to being appropriated to the payment of the debts of the testator. The property was so subject, and was in fact appropriated by the deed of the executor, lawfully authorized, in 1853.
Hence the commencement of adverse possession could not date earlier than the giving of that deed, and, at most, could have effect only against those holding title under that deed. From that time to the bringing of this suit was less than fifteen years. Wherefore no title could have been acquired in that way.
So far as the defendants sought to derive title from the same source as the plaintiff, viz. Josiah, Sen. — the plaintiff through his executor, the defendants through John as legatee — they would bo precluded from all questions as to the validity of the title of said Josiah, Sen., and so the points made on that subject become immaterial. *
If the defendants, would stand on adverse possession, as it was shown that the plaintiff had full color of title, and was doiDg continuously such acts of possession under such color as would constitute possession in fact as against a person without title or better right, it would be necessary for the defendants to show a better title in order to give their contemporaneous acts efficacy as against the plaintiff. This would not impose on the plaintiff the burden of showing his proper title to be authentic and valid. Hence the questions on that score were immaterial.
As no error is discovered that affects the judgment, the judgment is affirmed.