Angell v. Fletcher

76 Vt. 359 | Vt. | 1904

Munson, J.

The action is ejectment. The plaintiff is a mortgagee who claims to> have taken possession of the mortgaged premises after condition broken.' The defendants claimed on trial that there was no evidence tending to- show that the plaintiff was ever in possession or was evicted by defendants, and excepted to the order granting a close jail certificate.

It appeared that one McKinstry had been looking after the house for defendant Fletcher, the mortgagor, and had had charge of the key, and that plaintiff had got the key of him two or three times before the occasion in question toi go1 in and look the house over. The plaintiff testified that on the last occasion he merely asked for the key, without saying what he wanted it for or promising to return it; that he unlocked the door and went into the house, having with him one McCloskey, to whom he then and there rented the house and delivered the key; that he saw a stove in the house, but nothing else; that they took nothing out of the house and put nothing in; that two or three days later he went there and found the house occupied by defendants Kimball as tenants of defendant Fletcher. McKinstry, after giving his version of the procurement of the key, testified that he went to the place where plaintiff had left the key on previous occasions, and did not find it, and that he got it from somebody afterwards. There was no evidence, except as it may be gathered from the above statement, tending to show that any of the defendants, or McKinstry, knew what the plaintiff and McCloskey had done at the house as above stated. The court found that the plaintiff took possession of the premises and was evicted by the defendants. It is thought by a majority, the writer of the opinion dissenting, that there was evidence tending to show a sufficient taking of possession by the plaintiff and eviction by the defendants. This being so, the finding of the court below is conclusive, and the case presented is one in which a close jail certificate could properly be granted.

The claim that the granting of a certified execution is-prohibited by V. S. 1505 is based upon a misapprehension as to- its meaning. The judgment there referred to is that rendered in the action for betterments provided for in sections 1501-2, and the defendant referred to is the defendant in the declaration for betterments. This will be made plain by a reference to the first section of the betterment act of 1800, which contains the provisions as they stood before revision.

Judgment affirmed.