President of Middlebury College v. Cheney

| Vt. | Jul 15, 1828

Hutchinson, J.

delivered the opinion of the court. The first exception taken on trial, with regard to the reading of the copy of the charter, is now abandoned by the counsel.

The objection to the deed from Isaac White, and twenty-nine others, was,that it appears to have been acknowledged before a justice of peace of the State of Connecticut, and no evidence was adduced to show that in that state, a justice had power to take acknowment of deeds. This objection was overruled. The court possess sufficient knowledge of the laws of Connecticut to admit the deed without further proof upon that point. Very many of the ancient deeds of land in this state were acknowledged in that state before magistrates, and are frequently read in our courts. That was a question to the court, and any testimony must have been addressed to the court. And they needed none to a fact so fully known.

3d and 4lh. The admission of the deed from Stanton to Alien, and the decree Mien against Stanton, and the deed from Mien to Spafford. — IThe objection to all these is, that they forts UO title in Allen that enabled him to convey to Spafford; of course, Spafford could convey nothing to the Hunts, under whom the plaintiffs claim: that is, Mien, having ’conveyed to Spafford, April 5, 1802, when he had in himself no tille. The title of Spafford is nót perfected by the decree of chancery, and the deed from Stanton to Mien, in the year 1803. We find, On inspection of Mien's deed to Spafford, that it contains the usual covenants of Warranty. Hence his after-purchase enures to the benefit of Spafford. This is well settled law. It is salutary that such should be the law. What a farce it would seem for Mien to recover the lands of Spafford, because he has now a title which he had not when he cotiveyed to Spafford, and then Spaford recover of Allen the full value of the lands, and, perhaps, extra damages, on the covenants of Allen's deed, which assured Spafford at the timé, that Allen had a title and was well seized, and would warrant and defend the premises. The law 'abhors such circuity of action. A man may, by mistake, convey land he does not own. His grantee is made good, if the title is obtained and used in confirmation of that title, before any eviction or ouster. It appears in this case that Allen, when he conveyed to Spafford, had such an equitable claim to the land, as enabled him, by a bill in chancery, then pending, to compel Stanton to confirm his title. When this was accomplished, the title passed from Allen to Spafford, by operation of law, and in discharge of the covenants of Allen's deed to Spafford.

If, before this, Spafford had sued upon these covenants, ■ absd the suit was yet pending, after this he could recover only nominal damages. A suit brought by Spafford, after this, would be barred such a perfecting of title in Allen. The breach of the covenants would thereby be healed. We now speak upon supposition that Spafford sustained no special damage by eviction, or otherwise, while the title was in Stanton: The objection to these papers is also overruled.

The deed from Spafford to the two Hunts is objected to, because, the acknowledgment was taken before Royal Tyler, Judge of the Supreme Court; whereas, if he took the acknowledgment, he ought to have certified as a justice of the peace. ■

The constitution of this slate makes every Judge of the Supreme Court, ex officio, justice of the peace, throughout the state. Possibly tiie bptter course for them would be, to sign in that capacity in which they act. Rut, when such a Judge does an act which should be done as justice of the peace, and he signs as Judge of the Supreme Court, that, exm termini, carries with it justice of the peace also.' Yet not so, should he sign as justice of the peace, what should be done as Judge; for it is not included in die term. The deed in question was sufficiently.acknowledged, ■and correctly admitted in evidence.

The objection to the deed from árad Hunt to the plaintiffs, and the deed from Jonathan Hunt to the plaintiffs, is, the want of a sufficient description of the premises conveyed. The objection \as to one, is now abandoned by counsel. The description in the . other is, “ certain tracts and pieces of land, numbered 42, 44,” &c. It appears by the case that the township had been surveyed into Jots, and the lots numbered, and the division among the proprietors was made by drawing the numbers oí lots, as pointed out by the statute. ,A conveyance of lands, so surveyed and numbered and divided, maybe made by numbers of the lots; and the different terms, lots or pieces, would not affect the title. It is more safe to give a more full description, and write out the numbers at length, through fear of misreading figures. Rut, when there is no dispute about the figures, and all read them alike, they answer the purpose in a conveyance. These deeds were correctly admitted.

The only remaining question arises upon the exclusion of the vendue deed, offered by the defendant, or the virtual exclusion of it, by requiring proof on the par.t of the defendant, that the plaintiffs, at the period of die tax, held lands of the yearly value of two thousand dollars; the amount they might hold by their charter, free of taxation. Under this head two questions are raised.

1. Whether these lands are taxable under their circumstances ? and 2dly. If not, on whom the burthen of proof lies in the use of this vendue deed ?

The statute, laying the tax, lays it upon all the lands in the town, except lands sequestered to public, pious, and charitable uses. Now, it is contended that this means sequestered by charier, as some lauds are in every charter in the state. Rut wé see no sufficient reason thus to confine the expression. The législaturé might, in the statute, have said,sequestered by charter, or any other expression they saw fit to use. But théy have excepted what was thus sequestered. That is broad enough to include all methods of sequestering that are authorized by law. And we think the better construction is, to extend the exception to all that was, in a legal sense, sequestered to those uses, at the date of the statute assessing the tax.

Now we entertain no doubt, but that a conveyance to plaintiffs' for the use of the College, was a public use. It is in every sense public. No individual has any interest in it but what is common to others. Further, if the plaintiffs were capable of taking to the use of the College, the conveyance of the land, by Messrs. Arad and Jona. Hunt, passed the title effectually from them, and vested the same in the plaintiffs for the use of the College that is, sequestered it to a public use. And further, if the plaintiffs did not already hold lands of the yearly value of $2000, they were capable of taking, and the sequestration had become complete before thejax existed, and,of course, come within the exception of the statute. After the affidavits now produced by the plaintiffs, and none produced by the defendant, though a whole vacation has been given him for that purpose, we must treat,as beyond dispute, the fact that the plaintiffs had not lands of the yearly value of $2000, at the time the tax was laid. The conclusion is irre-sistable, that the lands were freed from taxation,and were not liable to the tax in question, and could not be divested from the plaintiffs by the vendue deed in question. Having arrived at this conclusion,it would be of no use to the defendant to grant him anew trial, even if the decision at the former trial was wrong, and the bur-then of proof was not on him; for we now must be convinced that he has no proof that would aid him in that respect. We further perceive that the whole cause has been decided correctly: that is, the verdict is correct. In such a case a new trial is not granted without some necessity forced upon the court by some evidently incorrect decision on the trial.

Paddock and Fletcher, for defendant. Young, Prentiss and Starr, for plaintiffs»

There is now no importance to the other question, on whom the burthen of proof lay, as to the yearly value of the lands held by the plaintiffs ? This is of no consequence, while there is no proof favorable to the defendant. But it is urged that the fact lay within the knowledge and in the power of the plaintiffs, and not of defendant. And, further, that if the plaintiffs would claim an exemption from a general tax, they must show themselves within the exceptions of the statute.

The facts lay within the knowledge ol the plaintiffs more than of the defendant; but the defendant might claim inspection of the records of the corporation, or take the testimony of the clerk; and they could find no trouble from their want of power to obtain the proof that was thus in the knowledge of the plaintiffs. This1 question must not be determined wholly by the affirmative or negative character of the testimony ^wanted ; but more from the circumstance,who needs it to make out his case. He must produce it, whether it be affirmative or negative. For instance, if the defendant with his vendue deed showed atax fastened by the statute to all the land in town; this would make him a prima facie case, and throw upon the plaintiffs the necessity of proving whatever would discharge, their lands from the tax. In this case the defendant shows a tax that never was attached to any land that was sequestered to public, pious or charitable uses : he, therefore, should produce testimony to show, prima facie at least, that this land was not so sequestered. Showing a tax, which might or might not affect the land, does not make out his defence. He must show one that does so affect it. Then he will succeed, unless his prima facie showing is done away by the plaintiffs. The decision was correct requiring this prima facie evidence to be produced by the defendant. Let judgment be entered for the plaintiffs, according to the verdict.