7 Vt. 511 | Vt. | 1832
The opinion of the court was delivered by
When Williams and Wood executed the deed to the defendant, the plaintiff appears to have been in possession of the land attempted to be conveyed by it, as part of his own purchase. And by reason of such possession alone, that deed was probably rendered invalid, under the statute of A. D: 1807. But' in such case, the defendant might still have proceeded on his second ground of justification, by showing that he entered upon the plaintiff by licence and command of Williams-and Wood,-though their-deed to him might not be competent evidence for that purpose. The ground on which the deed was rejected must necessarily have led to the exclusion of any evidence, however proper in its character, under this branch of the defence. Therefore, we are not to assume that no such evidence existed, or to refuse a new trial because it was not offered, At present, the cause must turn on the question, whether Williams and Wood had parted with their title, before they deeded to the defendant; in other word's, whether the locus in quo was included in their previous deed to Church. Apart of the description in that deed must, of course, be rejected, since the whole cannot stand. To give the deed the operation for
Judgment of the county court affirmech-