11 Vt. 521 | Vt. | 1839
The opinion of the court was delivered by
We think there was error in the charge of the court, as applied to this case. The case shows that Araunah Spear received a deed of the lot in question from Daniel Spencer, in July, 1836, and the deed was put on record in August following, and that the said Araunah immediately entered into possession, claiming title to the whole lot under his deed, and commenced a clearing and chopped over about one acre, and that, in August or September, 1837, he caused the clearing of this acre tobe completed.— It appears, also, that evidence was given to the jury tending to prove the defendant’s acts to have been done under Spear.
v The effect of this evidence is to extend the possession of Spear, by construction, to the .whole lot, as described in his dd&d. The. charge of the court assumes, that if the jury do find that the defendant acted under Spear, the plaintiff is entitled to recover, though they should find Spear’s possession prim' to any possession of the plaintiff, it being an admitted point that the chopping of the defendant was not on that portion of the lot cleared by Spear.
The plaintiff is a stranger as to the title, and his possession to any part of the lot is subsequent to the possession of Spear, and it does not appear that the alleged trespass of the defendant was committed upon any part of the lot in the actual possession of the plaintiff, Spear having had the first actual possession of a part, and constructive possession of the whole lot, there can be no subsequent conflicting possession extended by construction beyond the limits of the actual adverse possession. Crowell v. Beebe, 10 Vt. R. 33. Barr v. Gratz, 4 Cond. R. 426.
It is, then, clear that the plaintiffs could not maintain this action against Spear, and can he against a stranger ?— We think not. The doctrine is well settled, that,, in ejectment, the defendant may set up, as a defence, an outstanding title still subsisting in a stranger, though he in no way con
