28 Vt. 332 | Vt. | 1856
The opinion of the court was delivered by
This is an action of ejectment to recover the same land $et off as dower to Mary Wood, in the estate of her husband. The description in the declaration includes what the defendants claimed was the second, third and fourth rows of apple trees, whereas the dower set off was “the three rows of apple trees on the west side of the orchard.” There being two trees in a row west of those claimed by the plaintiffs, in the orchard lot, and two more in the same row, but in a pasture lot, the plaintiff's claimed that those four trees were not to be regarded as one of the rows referred to.
The charge of the court in regard to the liability of the defend^ant Briggs, might have been differently expressed, but we do not see how any question can be made in this case, but that if this defendant was in possession of any portion of this farm, he was of this portion, or a part of it, which was recovered by the plaintiffs. Not to spend time upon the exception in the deed to Briggs, which is found by referring to the deed of his grantor only, and which is so expressed as to show that the parties understood the exception probably as terminating with the life of the widow, as the reservation, or exception, is only for her benefit; but, allowing that this exception is as definite as the description in the commissioners’ report, which it obviously is not, there was still a controversy as to ■one of the rows of apple trees, and the defendant Keeler certainly claimed one of the rows, as not included in the exception at all, and so attempted to hold it, as part of the land confessedly deeded to the defendant Briggs. And Keeler’s possession, after the deed, is Briggs’ possession, unless something arises in the case to show that this possession in Keeler is exclusively on his own account, and without the concurrence of the gragtee, nothing of which ap¿ pears in the present case, but the contrary. We think the claim ■of Briggs, in regard to Keeler’s right to hold this row of trees, might fairly be regarded as a construction of the exception in his own deed from Keeler, as the1 court decided. Mr. Briggs was not only counsel for Keeler, but for himself also, and we do not think that when he claims possession of one of the rows of apple trees, as not included in the exception, he can fairly refer this exclusively to Keeler, since it does and must enure to his own benefit if it prevails.
Judgment affirmed.