| Vt. | Feb 15, 1858
The opinion of the court was delivered by
The case shows that in April, 1828, Mercy Adams, the wife of Daniel Adams, and the person under whom the plaintiff claims title to the land in question, and Theophilus and David Crawford, the persons under whom the defendant claims title, were the owners of adjoining tracts of land; that Daniel Adams, by virtue of his rights as the husband of the said Mercy was in the possession and occupation of the tract owned by her, and that the Crawfords were in the occupation of the tract belonging to them; that prior to 1828, there had been no division fence between these two tracts of land, but that early in that year Daniel Adams and the Crawfords agreed to build, and did build, a division fence between them; that in making such fence the small piece of land now in controversy was left in the same enclosure with Mercy Adams’ farm; that this fence was kept up by the said parties as their only division fence until 1838, when Daniel Adams died, and from that time by Mercy Adams, until June, 1849, when she died ; and that in 1850 her administrator sold her land, including the land in controversy, to the plaintiff.
In April, 1849, the Crawfords sold their tract to the defendant, and the defendant, in 1852, removed the fence so as to enclose
It is claimed on the part of the defendant, that the charge of the court below was erroneous, inasmuch as the court told the jury that if they found from the evidence that Daniel Adams and the Crawfords agreed upon the line between them, and built their fence thereon as the division lino of said farms in 1828, and the Craw-fords and Daniel Adams and his widow after him, for the period of fifteen years, acquiesced in and recognized said line, and kept up such fence as the division fence, the defendant was not justified in removing it.
The doctrine that when adjoining proprietors agree upon a division line between them, and acquiesce therein for fifteen years, they will be bound thereby, has been recognized in repeated decisions in this state, and is now too well settled to be questioned, but it is objected in this case that the fee of the land, on the one side, was in the wife of Daniel Adams; that he was entitled to and had the possession of the land, but that he had no power to make any agreement as to a division line, and that his widow, after his death, was not bound by such agreement and cannot avail herself of his acquiesence in the line, or of his possession of the land embraced within the fence.
We think this objection is not well founded. Adams was in the possession of the land, and was entitled to the possession up to the time of his death. It was certainly competent for him to agree with the Crawfords on a division line between their farms. How far his wife would be bound by such an agreement, if after his death she had repudiated it, is a question we are not now called upon to decide; it is sufficient to say that neither she nor those who claim under her, have ever objected to it, but are here insisting upon it as a binding agreement.
That the Crawfords were competent to agree on such a division line is not questioned ; that they did agree in such line and acquiesce in it and occupy up to it, as a division line for fifteen years, must have been found by the jury under the charge of the court,
The defendant also insists that the county court erred in not charging the jury as requested by him. We think, under the facts as detailed in the bill of exceptions, the defendant was not entitled to the charge he requested. The evidence tended to show and the jury must have so found, that the Crawfords and Adams, when they agreed upon the line and built the fence did it, understanding on both sides that it was to be the division between the land owned by Mercy Adams on the one side and the Crawfords on the other; that each occupied up to and acquiesced in it as the division line between the two lots; that while Adams had the sole and exclusive possession of the land, so that his declarations were admissible to show the character of that possession, as heretofore decided in this case, and reported in the 28 Yt. 448, still he had this possession and claimed to exercise his right then solely by virtue of his being the husband of Mercy Adams, and on the ground that the title to the land was in her, and that the said division fence was the boundary of her land; that he occupied it because it was hers, without claiming it as his own or in any manner asserting a right therein, at variance, or in any way inconsistent with the title of the said Mercy Adams.
This possession- was continued by him down to the time of his death, when the possession reverted to his wife, and she continued to occupy and possess the same premises until her death, which took place in 1849, a period of over twenty-one years after the erection of the division fence, and the question now is, can Mercy Adams or her representatives, derive any benefit from the possession of her husband? We think, inasmuch as the husband made no claim that he was in possession in his own right, or on any other ground than that the land belonged to his wife, and as upon his death the wife took and continued the possession in the same manner, and claimed the land as her own ; that the possession of the husband,
We think, therefore, that the county court did not err in their charge or in their refusal to charge as the defendant requested.
The result is, the judgment of the county court is affirmed.