61 Vt. 530 | Vt. | 1889
The opinion of the court was delivered by
As to lot No. 107. The plaintiffs never had actual; nor constructive possession of lot No. 107. They stand upon their title derived from Samuel Bass, who held under tax titles of the-years 1799 and 1812. They have no evidence of the proceedings-in relation to the sales prior to the deeds from the tax collectors.. The recitals in the deeds of the preliminary proceedings are not evidence of the facts stated in such recitals. Hall v. Collins, 4 Vt. 316; Spear v. Ditty, 8 Vt. 419; Reed v. Field, 15 Vt. 672; Brown v. Wright, 17 Vt. 97; Townsend v. Downer, 32 Vt. 190; 2 Blackw. on Tax Titles, s. 1132; Black on Tax Titles, s. 247. Where the party is not and never has been in possession, no presumption should be made in favor of their regularity... Where no possession accompanies the tax deed, the presumption is rather against its validity. The neglect to assert its validity for, as in this case, eighty years, argues a defect in it. In such-a case no presumption ought to be indulged in to support a stale-claim, one which the party did not assert in a reasonable time after he acquired his right. Brown v. Wright, supra; Hole v. Rittenhouse, 19 Pa. St. 305; 2 Blackw. on Tax Titles, ss. 1098, 1105, et seg.; Black on Tax Titles, s. 261. But the-plaintiffs say that the defendant is a trespasser, and as against him the presumption of regularity in the proceedings prior to the tax. deed applies; that proof of them is only required against the original owner, and cite Bellows v. Elliot, 12 Vt. 569. It was-not so held in that case, but conceding the doctrine, and that it’, can be invoked by one never in possession, the rule is “ that'one who is in possession of land under claim and color of title is not, a mere intruder, and as against such, the holder of the tax title must show the same jurisdiction of ■ the sheriff (tax collector) to sell, as against the former owner.” Black on Tax Titles, s. 248, citing Miller v. McCullough, 4 Pitts. L. J. 223. Tarbell, the
The plaintiffs further insist that the act of 1886, No. 85, renders their title valid as against the defendant. That act provides. that when lands have been listed to the grantee in a collector’s ■deed, or to his grantees, for a period of twenty years or more, •and taxes paid thereon, the title shall be valid against persons •subsequently entering thereon without having any legal title thereto, i. e., intruders or trespassers. The lot was first set in the list to the plaintiff’s grantor in 1847, the twenty years expired in 1867. Conceding the validity of the act of 1886, 'which is questionable, the report shows that the defendant is in actual adverse possession, under color of title beginning as early .-at least as 1856 ; he is not a mere intruder, nor trespasser, but a ■bona fide claimant of the land, in possession, and the statute has .no application as to him.
As to lot No. 106. The defendant concedes the plaintiff’s •'title to this lot. The question is as to its location, whether the •east line of it is where the plaintiffs claim it is, or forty-two rods ■west of it. The burden of showing the location' of the line is ■upon the plaintiffs. It is not shown by the report that the line •of the lot is as claimed by the plaintiffs. Many facts bearing •upon the question of its location are found by the referee, but .are as consistent with the line being in one place as in the other. As the fact of location does not appear to be where the plain-tiffs claim it is, they are entitled to recover for the trespasses west of the admitted line only, that being the extent to which -•they show title, to the lot.
Judgment reversed and judgment for the plaintiffs for one Jiundred dollars and interest since %Mh November, 1881, and judgment as to certified execution affirmed.