| Vt. | Feb 15, 1848
I do not propose to notice particularly more than two of the questions raised by the bill of exceptions in this case.
1. It is contended by the defendant’s counsel, that the circumstance, that, after the commencement of this suit, to wit, in May, 1846, the plaintiff conveyed to Albert Day, by quitclaim deed, all the right and title he had in the premises, required instructions on the part of the county court, that the plaintiff’s right of action, if any he had, was thereby taken away, — notwithstanding the additional fact, put into the case, that in September after, and before trial, Day reconveyed to the plaintiff, by a similar deed, the same premises. The plaintiff thus had title at the commencement of his suit and at the time of trial. This is all that has ever been required in this state, and more than seems to have been required by some respectable authorities. Burton v. Austin et al., 4 Vt. 105" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/burton-v-austin-6571367?utm_source=webapp" opinion_id="6571367">4 Vt. 105. Adm’rs of Tryon v, Tryon et al., 16 Vt. 314. In the first of these cases, the plaintiff’s interest, being that of a mortgagee only, was determined, during the pendency of the suit, by payment in full of the mortgage money by the defendants, in pursuance of a decree in chancery, which the plaintiff had obtained. It was very properly decided, that he could not recover lands, to which he had ceased to have any right, although he had a valid claim, when he instituted his suit, and costs were incurred in prosecuting that claim. The defendants were, however, denied costs that accrued previous to the satisfaction of the decree. In a case in New York, involving similar circumstances, except that the plaintiff’s title at the commencement of his suit depended upon a life estate in the land sued for, which estate terminated before trial, the plaintiff was allowed to have judgment, to enable him to recover rents and profits, as well as his costs, — but with a perpetual stay of the writ of possession. Jackson d. Henderson v. Davenport, 18 Johns. 295" court="N.Y. Sup. Ct." date_filed="1820-08-15" href="https://app.midpage.ai/document/jackson-ex-dem-henderson-v-davenport-5474329?utm_source=webapp" opinion_id="5474329">18 Johns. 295. In the case of Adm’rs of Tryon v. Tryon et al. the plaintiffs, in their character of administrators of Jesse Tryon, derived title to the premises’ under a levy of an execution, issued upon a judgment founded on a claim due to the intestate; but before trial the probate court had divided . the lands in question among the heirs, among whom were the defendants, in the manner pointed out by the statute. Judgment was
The fact, that, for some portion of the interval between the bringing of the suit and final trial, the plaintiff was divested of title, even by his own act, can produce no prejudice to his right to recover. "Whatever disqualification was created was temporary, merely, and ceased on a reconveyance to him. By that act he became re-invested with all the rights he originally had, to the same extent as if no interruption had intervened. There was, therefore, no error in the instructions which the county court gave on this point.
2. But we are of opinion, that the directions given, by virtue of which Blakely was made responsible for rents and profits which accrued before he took possession on the first of April, 1845, by virtue of the lease from Clark, the other defendant, to him, were clearly erroneous. Although his entering and remaining in possession, at the time of bringing the action, justly subjected him, jointly with his lessor, to this possessory action, by the real owner, for the land, still, his own illegal act of intrusion cannot, by any fiction, be carried back beyond its true date, so as to render him responsible for its consequences, before the trespass was committed. This would be a violation of the plainest principles of justice. The cases cited do not warrant such a principle. The case of Rood v. Willard et al., Brayt. 67, affords no ground for it, — as it no where appears in that case, that either defendant of the two, although their acts of intrusion were unconnected, was subjected to damages for any period before the acts committed by him. The question was, whether a joint action would lie.
A similar question was raised in Marshall v. Wood et al., 5 Vt. 250" court="Vt." date_filed="1833-01-15" href="https://app.midpage.ai/document/marshall-v-wood-6571518?utm_source=webapp" opinion_id="6571518">5 Vt. 250, and decided in the same way. The same remark applies to this case as to that in Brayton. Nothing indicates, that either defendant was charged with rents and profits, for any period of time before the trespass committed by him. It was said by the Judge, who delivered the opinion of the court, that, if any one did not choose to be held responsible for portions of the premises, with which he had nothing to do, he could plead separately, and'disclaim as to them. Omitting to do this, the occupants of several rooms in the building, though unconnected with each other, were held to be jointly liable. It does not appear, whether any rents and profits
In this case Clark was defaulted. Blakely was therefore severed in the outset; in making defence he seems to have lost no time in making what was'equivalent to a disclaimer for the period of time in question. There is no reason, why he should not have the benefit of it.
It is not our business to inquire, whether, if, on a new trial, the plaintiff assess his damages against both for the period of time for which both are liable, he has any remedy, in this or another suit, for the rents and profits accruing previously to the joint liability. There was no absolute necessity of joining Blakely in the suit. The plain-tiff may now, if he thinks it expedient, enter a nonsuit as to him, and hold his judgment and have full damages assessed against Clark.
We have not found it necessary to consider another question, made in argument, — namely, that in respect to the entry by Clark under a parol contract for a purchase; we therefore express no opinion respecting it.
The judgment of the county court is reversed and a new trial granted.