17 Vt. 489 | Vt. | 1845
The opinion of the court was delivered by
The object of this action is to recover damages, which, it is claimed, the plaintiffs, in their representative capacity, have sustained by reason of the defendant; having wrongfully set fire to a quantity of timber, brush, &c., which had been cut upon certain premises, of which, it is alleged, the plaintiffs, as administrators of the intestate, were seized and possessed. The declaration seems to be partly in trespass, and partly in case; but it is not essential, that we should decide to which class of actions it is to be referred, since, in either point of view, the facts detailed in this bill of exceptions will not sustain the action.
It seems that the intestate died seized of the premises described in the declaration, and was the owner thereof, and that the plaintiffs, as his administrators, having taken control of them, leased them to divers individuals for a period of six or seven years, and that, in 1841, one Tilden, who had married the intestate’s daughter, who was still living, went into possession of the premises, and has ever since remained in possession, apparently carrying them on for himself. The case, however, is silent as to the circumstances of Tilden’s going into possession, and also as to the person under whom he went into possession. We must, consequently, consider Tilden in possession, either as a disseizor, or else as matter of right. If we could presume a surrender, by the administrators, of their then present possession of the premises to Tilden, in behalf of his wife who was one of the heirs at law, still this would not help the case. In either event the administrators could not maintain an action of trespass, not having any possession ; and though an action on the case may be maintained by a person, who has a reversionary interest, for an injury done to real estate, which works a damage to him in reversion, yet the present is not such an action. The action is brought by the plaintiffs, upon the title of their intestate, and
We think it is quite clear, that an administrator, who is out of possession cannot maintain an action on the case, in behalf of the heir, for an act, which is a damage to his inheritance. If it appeared, that the whole estate was wanted for the payment of the debts of the intestate, and an injury was done to it, while the administrators were out of possession, and the action was brought for the benefit of creditors, it might possibly merit a different consideration. But that is not this case. The result is, that, whatever view we take of this case, the proof cannot sustain this action, and the judgment of the county court is reversed.