Langdon v. Templeton, 66 Vt. 173

Langdon v. Templeton

66 Vt. 173 | Vt. | 1893

ROWELL, J.

When this case was here on demurrer to the bill, 61 Vt. 119, it was held that in the circumstances alleged, the bill was maintainable as a bill of peace, for that the tax sale of the lot in 1824, as the proceedings therein were set out in the hill, conferred an equitable title on the purchasers thereat, under whom the orator claims, and gave them the right to call in the legal title; and for that the *178orator, being in possession, could bring no action at law against the defendant who, it did not appear, had disturbed his possession, but who, it did appear, was making claim, and had brought suits against the orator’s tenant, but not such as would necessarily settle whether the defendant had title or not. But now the case is materially changed from that made by the bill, for by the finding of the masters it appears that said tax sale was void, and therefore it did not confer even an equitable, title on the purchasers thereat, much less did it give them a right to call in the legal title, for no legal title was thereby ever inchoated. Nor did it give color of title. That would have to come from the collector’s deed, which was never given. Wing v. Hall & Darling, 47 Vt. 182, 216.

The orator and those under whom he claims paid taxes on the lot from 1824 to 1886, and claimed to own it. But the payment of taxes is not an act of possession, and does not tend to show a possessory title. Reed v. Field, 15 Vt. 672; Tillotson v. Pritchard, 60 Vt. 94. Neither the orator nor those under whom he claims ever had color of title to the lot. The orator does not claim title by adverse possession; and as the tax sale was not effective to confer title, which is the only source from which he ever claimed to have derived title, he is left toqstand on possessory title only, if any he has.

Now concerning possession, the only allegations of the bill are, that said lot is timber land and has never been enclosed, and that the orator cut timber on it long before the defendant laid claim to it, which cutting was the only use the orator had any occasion to make of it; and that in 1885, one Clogston went into possession of it, and has since remained in possesion, cutting timber therefrom and manfacturing it into lumber, under a contract with the orator by which he is bound to maintain for Clogston the right thus to possess and to cut timber.

*179As to the allegation of cutting before the defendant laid claim the finding is that neither the orator nor those under whom he claims ever did anything on the lot till late in the fall of 1872, when the orator, acting under the advice of counsel, who told him that his title was bad and to go into possession, entered on about ten acres of the southeast corner of the lot and that fall and winter cut thereon from thirty to fifty thousand feet of lumber. As to the allegation of Clogston’s possession the finding is that on December 21, 1885, the defendant, knowing of the orator’s claimed rights to the lot and what he had done upon and concerning it, finding the lot vacant and no one in possession, entered thereon under his deed of Dec. 17, 1885, from Kellogg, which had been recorded, and continued there, cutting wood and timber, till the 8th day of January, 1886, when the orator, knowing from the record of the Kellogg deed, entered upon the lot in the night time, through Clogston, and drew away and converted to his own use the wood and timber there remaining that the defendant had cut; and further, that in January, 1887, the defendant, with his men, again began to cut wood and timber on the lot, and that thereupon Clogs-ton, acting for and under the direction of the orator, who knew that the defendant was in peaceable possession under his deed from Kellogg, raised a force of men, and therewith went to the lot, whereupon the defendant and his men, to prevent violence, left the lot, and Clogston and his forcé entered in behalf of the orator, who has ever since retained possession by force, and cut off and converted to his own use more than a million feet of timber. This is all the possession the orator is shown to have ever had.

It not appearing that the lot had definite boundaries marked upon the land, and the orator having neither title nor color of title- thereto, his actual possession of the ten acres thereof, though taken claiming the whole lot, gave him no constructive possession of the residue. So prior to the *180defendant’s entry on December 21, 1885, the orator never had possession, actual or constructive, of any part of the lot except said ten acres. He cannot, therefore, on the ground of possessory title, have relief against the defendant in respect to any other part of the lot. It does not appear that the defendant has ever entered upon said ten acres or any part thereof; and if his deed from Kellogg, under which he entered, gave him color of title to the whole lot, as he claims and the orator denies, his actual possession thereunder of other parts of the lot, though he claimed the whole, gave him no constructive possession of said ten acres if the orator was then in the actual adverse possession thereof. Executors of Stevens v. Hollister, 18 Vt. 294; Beilis v. Beilis, 122 Mass. 414; Elliot v. Pearl, 10 Pet 443. To be sure the masters say that when the defendant entered he found the lot vacant and no one in possession ; but in view of the fact that the lot had been listed to the orator and he had continued to pay taxes on it ever after his entry on the ten acres in the fall of 1872, we do not construe this finding to mean that the .orator had abandoned all possession he had ever had of the lot, but only that he was not then in the actual occupancy of any part of it. Any other construction, we think, would be unwarrantable, in the circumstances. The fact that the orator had done no act upon the lot for nearly thirteen years next before the defendant’s entry, does not of itself and as matter of law constitute an abandonment of the possession he had formerly had. Whether a prior possession has been abandoned or not is a question of fact, to be determined from the circumstances of the case. Patchin v. Stroud, 28 Vt. 394.

There being, then, no finding of abandonment by the orator, we think it must be held, in view of the character of the land, that at the time the defendant entered the orator still 'had possession of said ten acres. But it is claimed that this possession was not such as would ripen into title against *181the owner, and therefore is not good against the defendant, a mere stranger, standing in no confidential relation to the orator. But we think that the possession, being under a claim of right, contained all the other elements of adverse possession, and would ripen into title as against the owner in the requisite time. But it is not necessary that it should be of this character in order to be good against the defendant ; for a possession may be good against one man and not good against another. If there is a tortious possession, not amounting to a disseisin, the constructive possession, as between the tortfeasor and the party having the legal title, is considered as continuing in him who has the right; but the tortfeasor may, nevertheless, maintain trespass against a stranger who disturbs his possession, and the stranger cannot defend by saying that the tortfeasor’s possession was the possession of the true owner. Slater v. Rawson, 6 Met. 439; Cf. Austin v. Bailey, 37 Vt. 219; Perkins v. Blood, 36 Vt. 273; McGrady v. Miller, 14 Vt. 128. “ He that hath possession of land, though it be by disseisin, hath right against all men but against him that hath right-.” Doct. and Stud., ch. 9. So in the Roman law, when one had legal possession of a thing, by which was meant physical apprehension with intent to hold as owner, he was protected in his possession against all who had not a better right, and the praetor granted him an interdict for the purpose of protecting him. Sand. Just., Lib. 11, Tit. 6.

Now in respect of relief in regard to said ten acres, the orator stands much as he stood when the case was here before in respect of relief in regard to the whole lot; and as the law of the case was then settled, he seems to be entitled to relief as to that part of the lot, unless, as claimed by the defendant, he is disentitled thereto by reason of the forcible manner in which he took and retained possession of the lot as aforesaid, which, it is claimed, was a violation of the statute against forcible entry and detainer, and made the *182possession thus taken unlawful, even though the orator had a right of entry, which is denied.

This claim is based upon the maxim that he who comes into equity must come with clean hands. But this maxim, salutary in principle and broad in application as it is, has its limits; and in the administration of equitable relief in particular controversies, it is confined to misconduct in regard to the matter in litigation that has in some measure affected the equitable relations of the parties in respect thereto and the equitable rights asserted by the orator, 1 Pom. Eq., s. 399.

. It is said in Meyer v. Yesser, 32 Ind. 294, that fraud without injury is never available as a defence in equity. Turning to the case, it does not appear, as we have said, that the defendant ever entered upon said ten acres, so it does not appear that he was driven therefrom by the orator’s forcible entry, if such it is to be regarded, and such entry in no way affects the equitable relations that existed between the orator and the defendant in respect of said ten acres before such entry was made, nor the equitable rights of the orator growing out of his prior possession thereof, on which rights alone relief is here granted. The maxim, therefore, is not applicable.

It is contended that the defendant is estopped from claiming the lot because of what he did about listing it to the orator and knew about the orator’s acts upon and concerning it and his claim of title to it. But this contention cannot be maintained, for no element of estoppel is disclosed by the case.

The views expressed render it unnecessary to consider any other question discussed at the bar.

Decree reversed and cause remanded, with directions to enter a decree for the orator, making the injunction perpetual as to the ten acres and as to the suits at law as far as they relate thereto. Let the cjuestion of costs below be there determined.