Cheney v. Cheney

26 Vt. 606 | Vt. | 1854

The opinion of the court was delivered by

Isham, J.

The judgment of the county court in this case must be affirmed. In order to sustain this action of ejectment, the plaintiffs must show a legal title, and the right of an immediate possession to the premises described in the declaration, not only at the commencement of the suit, but also at the time of trial and judgment. Benton v. Austin, 4 Vt. 105. Tryon v. Tryon, 16 Vt. 313. McDaniel v. Reed, 17 Vt. 674. If several plaintiffs count upon a joint’title and right of possession, the same principle applies. The legal title and right of possession must exist in each and all of the plaintiffs, at the time of recovery, or they cannot sustain the action. For this reason, evidence may be introduced under the general issue, disproving that title; for it is the denial of a fact which the plaintiff must prove, in the first instance, in support of his action. Jackson v. Dumont, 9 Johns. 55.

The case under consideration falls within this general principle. It is stated in the exceptions, that on the 9th Of June, 1851, Warner Cheney, one of the plaintiffs, conveyed his interest in the land to the defendants, Cheney and Stockwell, and that after-wards Stephen White and his wife Matilda,. as' also Franklin Boody and his wife, after the commencement of this action, conveyed all their right and interest in this land, to the same defendants. Those persons, therefore, had no title'or right of possession to the premises, at the time of the trial of the case. They could neither sustain an action-themselves for the recovery of the land, nor join with others who may have had a title.

This objection is not avoided by the consideration, that the deeds were executed while the defendants were in adverse possession of the premises. That result would follow if the conveyances had been made to third persons, not in possession. At common law, and under our statute, deeds executed under such circumstances are void and convey no legal title as against the party in adverse possession, though as between the parties, the deeds may be good, and will convey an equitable interest. Edwards v. Roys, 18 Vt. 473. University of Vt. v. Joslyn, 21 Vt. 52. Edwards v. Parkhurst, 21 Vt. 472. But at common law, and under our statute, such cofaveyances are good and effectual to convey the legal title and right of possession, when made to those in actual possession, though that possession may be adverse. This doctrine was directly decided in the case of Jackson v. Dumont, 9 Johns. 55.

By those conveyances, therefore, the defendants, Cheney and Stockwell, have that interest and title to these premises, which their grantors had; and they hold the same,, in common with those plaintiffs who have not conveyed, and who still retain them right and title to the land. Those plaintiffs, therefore, who have in that manner conveyed their right and interest in the premises to the defendants, cannot be parties to a suit or judgment for the recovery of the land, and its possession, from those to whom they have conveyed.

This case is not affected by the act of 1851, p. 5, in which] it is provided that “ whenever the title of the plaintiff in an action of “ ejectment shall expire or be transferred, after the commence- “ ment of such action, the suit shall not thereby fail, but the plain- “ tiff may recover judgment for his damages, for the detention of “ the premises during the continuance of his title, with costs.” If this statute was made to apply to a case of this character, the rule of damages, iu many cases, would be different with some of the plaintiffs, 'from what it would be with others. The statute, according to its letter and spirit, extends only to cases, where the entire interest and right of all the plaintiffs has been transferred. If all these plaintiffs had joined in that conveyance, the statute probably would have had effect. But it was never designed to permit those who had no title, at the time of the trial, to join in the prosecution of a suit with those, whose title may not be controverted.

The judgment of the County Court must be affirmed.