28 Vt. 448 | Vt. | 1856
The opinion of the court was delivered by
In the present case the plaintiff claimed title to the premises by fifteen years adverse possession. To make out the term, it became necessary to include a portion of the time while the land was claimed to be in the possession of a married woman and her husband, both residing on the adjoining land, the fee of which was in the wife. The judge ruled that he might have the benefit of this possession of the wife, (as he regarded it,) and that “ her being a feme covert made no difference in her ability to gain title to the land in question, by possession, and that the actual possession could not be qualified by concessions of the husband, so as to prevent the running of the statute of limitations.” And testimony offered, tending to show that after the land in dispute was enclosed, the husband declared that he made no claim of title, but that the land belonged to the Crawfords, was rejected by the court.
The rejection of the testimony, and the charge of the court, seem to us altogether consistent, and equally a misapprehension of the law applicable to the subject. The case presented in the exceptions does not seem to be one where the wife is losing part of her freehold by the adverse possession of an intruder, and the acquiescence of the husband. If so there might have been more color in equity and justice for the rule laid down by the court. But here the plaintiff attempts to make title to land, confessedly not hers, unless obtained by means of an adverse possession, some
Now, no rule of law is better settled than that such a possession is exclusively that of the husband. A married woman, living with her husband, is not capable of committing a disseisin, as the cases cited in argument abundantly show. Nor can she be said to have either an independent or a joint possession with the husband, The possession is that of the husband alone. She is no more capable of having such possession, than she is of contracting or sueihg upon a contract made under coverture, or as much, indeed, for she may sometimes be joined with her husband in Such case as plaintiff, it is said, when she is the meritorious cause of action, and the promise is made expressly to her. But while she resides with her husband, she could never be said to have any possession of lands or tenements, which were occupied and carried on by the husband. The possession, then, being exclusively that of the husband, his declarations were competent to show its character. And although remote, they were after the fencing of the land into the same field with the other lands occupied by him, and if the jury-were satisfied this Was originally done by consent of the Crawfords, or in subordination to their title, the possession could avail nothing for the purpose of creating title in Adams, or those who occupied after him, until something was said or done to advertise the owners that those in possession claimed title against them, as has often been held in this state. Judgment reversed and case remanded.