27 Vt. 252 | Vt. | 1854
The opinion of the court was delivered at the circuit session in September by
This is an action of ejectment brought to recover the possession of a certain parcel of land described by metes and bounds in the declaration, and also of two stalls in the horse-bam of the intestate Elijah Wood, in his life time, at the south-west corner of the same, and twelve feet square over said stalls for hay.
The title of Elijah Wood in his life time was admitted, and the wife of N. W. Patch was one of six hems to his estate, and as such entitled to one-sixth of the estate. The plaintiffs claim title to the premises sued for as being a part of the reversion in the widow’s
These are all set off to the plaintiff’s wife in the division by the same description. We apprehend there is little ground to claim that the setting off the two stalls and the space above them is void for uncertainty. They are described as being two stalls at the south-west corner of the horse-barn, and the space above them as twelve feet square. The identity of the subject matter of a deed rests in parol, and the same rule applies to distributions of estates in the probate court. In this case the most absolute certainty could be given as to the identity of the stalls and the space above, by the introduction of parol evidence, as much so as if a particular chamber in the house, designated as the north-west chamber, had been sot to the widow. It is quite clear that it was the intent to give to the widow something more than a license to use the stalls and the twelve feet square of the scaffold above, and that she took in them a life estate; and there can be as little doubt that they are the subject of an action of ejectment. It was adjudged in the case of Lady Lacres, Lev. 58, that ejectment lay for a stable, because it was a word of a determinate signification, and could be delivered upon a writ of execution. So, for a chamber in the second story of a particular house. There was, it is said, certainty enough to direct the sheriff in the execution. 2 Bacon Abridgment, •420. The stalls and the space above, are so particularly specified that the sheriff could well give possession of them, and when this can be done, as a general rule, an action of ejectment lies to recover the possession.
In regard to the three rows of apple-trees, there may be perhaps more doubt. The declaration describes the land by courses and distances, beginning at a given point; and the case finds that the
They set out the first three rows of trees on the west side of the orchard, running north and south in the centre, between the third and fourth rows. The running a line in the centre between the last row of trees set off, and the next, shows very satisfactorily that the intention was to set off territory, and not simply a right to take and use the fruit. The commissioners give the eastern line as equi-distant between the third and fourth rows of apple-trees, but it is true, they give no other bounds.
In Beecher v. Parmele et al., 9 Vt. 352, it was held in the case of a levy of an execution, that where the lot was in rectangular form, a description of a certain number of acres off the east end, was a sufficient description by metes and bounds, and that it should be intended to be by a line parallel with the lot line. The same principle was adopted in the case of Rich v. Elliot, 10 Vt. 211. A deed was executed conveying “ all' of the first division drawn to the right of a particular individual, except forty-six acres off the west end of said lotand it was held to be a legal intendment, that the lot was to be divided by a line parallel with the lot lines. In that case the form of the lot, it was conceded, was rectangular, having its sides towards the cardinal points. In the case before us, the rows of trees run north and south, and the orchard was doubtless rectangular. It has been decided that ejectment lies for an orchard, because it is a word of certain signification, though in the writ it must be demanded and described as territory. 2 Bacon, 419.
In the present case a line being given between two rows of trees, and east of the third row, we think it must be taken to have been the intention of the parties, as derived from the case itself, to set off to the widow, that portion of the orchard, laying west of the line given, being the west side of the orchard. As this is the construe
It has been said that the case shows that the widow had only taken the fruit in her life time, leaving to Keeler the cultivation of the soil, and that this was giving a practical construction to the language of the commissioners. But this cannot have a very decided influence. There may have been sufficient reasons why she did not choose to attempt a cultivation of the land, and if she left it to be occupied by Keeler, he would become, so far as the land itself is concerned, in the nature of a tenant at sufferance, and the fact is stated in the bill of exceptions that after the decease of the widow in 1849, Keeler took the possession of the premises, and, probably the meaning is, in his own right.
A question was made on the argument as to the possession of the defendants. It appears that after the death of the widow, the defendant Keeler, in 1849, took the possession of the premises and excluded the plaintiffs from the same, and it is to be taken that his possession continued down to the bringing of the suit.
In regard to Mr. Briggs’ possession, the case is quite bald as to facts ; but it appears that in August, 1851, he took a quit-claim deed from Keeler of the premises and probably left Keeler to continue in his actual possession, and if so, what must be the effect P We think it a sound principle, that if the grantee of an absolute deed leaves the grantor in possession, he becomes a quasi tenant of the grantee, and that in such case, the grantee may be well joined in a suit against the grantor. The relation of landlord and tenant may well be said to subsist between them; the grantor being a tenant at sufferance. Hodges & Spaulding v. Gates, 9 Vt. 178. Stedman v. Gassett, 18 Vt. 346. Marvin v. Dennison et al., 20 Vt. 662. But be this as it may, the plaintiff at all events was entitled to a judgment against Keeler, and the judgment being entire, must be reversed in toto.
The judgment of the county court is reversed.
