72 Vt. 270 | Vt. | 1900
The evidence to show the true date of the writ was admissible, and the motion to dismiss, for want of jurisdiction, was properly overruled. Hopkins v. School District, 27 Vt. 281.
After the plaintiff had been in possession of the farm for more than two years, carrying it on under his contract, defendant Sowles, as administrator of the estate of ■ William L. Sowles, brought his action of ejectment in the statutory form— not a justice ejectment under the forcible entry and detainer act,— against the plaintiff, returnable before a justice of the peace, but in the declaration his seisin and possession were alleged to be in his own right in fee, and not in his representative capacity. Judgment was rendered for the plaintiff therein to recover the seisin and peaceable possession of the farm in question, and a writ of possession was issued upon that judgment.
The writ of possession was put into the hands of defendant Ladd, a deputy sheriff, for service, whereupon the defendants went to the farm, and Ladd quietly and peaceably moved the household goods and other personal effects of the defendant therein, into the highway and put Sowles into possession of the farm ; and Ladd seeks to justify his acts in this behalf, in the suit at bar, under the writ of possession.
The plaintiff, in this suit, contends that the justice had no jurisdiction of the subject matter, and therefore the writ of possession affords no justification.
At the April Term, 1898, of Franklin County Court, the judgment of the justice was vacated in an action of audita guerela brought for that purpose, and it was adjudged therein that the justice was without jurisdiction of the subject matter, and
But it is said that Ladd, not being a party to the action of audita querela, is not affected by the judgment therein. Assuming, but not deciding, this to be so, we examine the question as to whether the justice had jurisdiction.
The object of the action of ejectment in this State, being not merely to recover the possession of lands, but to settle the title and establish the right of property, and the judgment, when recovered, being, as between the parties, their heirs and assigns, conclusive evidence of that title — Y. S. 1492; Payne’s Administrator v. Payne, 29 Vt. 172; Marvin v. Denison, 20 Vt. 662— the plaintiff in the action before the justice, in order to recover, was obliged to show title in himself to the land in' question, which is conclusive that the title to land was involved within the meaning of section 1040, V. S., as held in Jackway v. Barrett, 38 Vt. 316, and in Dana v. Sessions, 63 Vt. 405. Clearly the justice was without jurisdiction;
The grounds of the defense made, rendered the judgment of the justice, the writ of possession, and the proceedings in relation to the action of audita querela material, and the same were admissible in evidence.
At the close of the evidence, each defendant moved for a verdict, but it does not appear from the exceptions that any grounds' were stated upon which the motions were based, and therefore, in disregarding them, there was no error. State v. Nulty, 57 Vt. 543.
The court held that the writ of possession and the judgment upon which it was issued, were void; that the defendants were trespassers and liable for actual damages, to which holding the defendants excepted.
The justice being without jurisdiction of the subject matter, as hereinbefore shown, not only was the judgment void, but the
■In actions of ejectment, if judgment is rendered for the plaintiff, he shall recover his damages and the seisin and possession of the premises. Y. S. 1491. And the prescribed form of the writ of possession to be used upon such a judgment states that, by the consideration of the court named therein, the plaintiff has recovered judgment for his title and possession of and in the realty therein described. Y. S. 5417, Form 5.
In actions before a single justice under the forcible entry and detainer act, against a tenant holding over without right, exclusive of rents and costs, the plaintiff can have judgment only for the possession of the premises, and a writ of possession shall issue accordingly. Y. S. 1563. The clause that a writ of possession shall issue accordingly, means that the writ shall be so drawn in form and substance as to comply with the law upon which the action is based, and that it shall be within the scope of the judgment upon which it is issued.
It appeared by the writ of possession under which defendant Ladd acted, that the judgment on which it was issued was rendered by the subscribing justice, and that it was for the plaintiff to recover his title and possession of the farm in question. The law permitting such a judgment to be rendered was without the jurisdiction of the justice; and the defendant was bound to know the law.
The writ, therefore, was not fair on its face, and afforded no justification to any one acting under it. Driscoll v. Place, 44 Vt. 252; Carleton v. Taylor, 50 Vt. 220. It follows that the defendants were trespassers and liable for actual damages, as held by the court, and that their ninth and tenth requests to charge,
Whether the contract was within the statute of frauds, need not be considered; for, if it was, the defendants have waived that defense by allowing the contract to be established by parol evidence without objection, and it must be enforced as proved. Montgomery v. Edwards, 46 Vt. 151; Battell v. Matot, 58 Vt. 271; Pike v. Pike, 69 Vt. 535.
The defendants’ second request to charge was as follows: “If the jury find that the plaintiff leased the premises without writing for five years, as plaintiff’s evidence tends to show, still the defendant as administrator would be in the lawful possession of the premises, by his servant, the plaintiff, under the circumstances at the time of the alleged ejectment from the premises as his testimony tends to show, and this action could not be sustained,”
Such a lease would have had the effect of creating- an estate at will — Y. S. 2218 — with the right of possession in the lessee .as long as he was allowed to occupy and carry on the farm thereunder ; and such an estate may ripen into á tenancy from year to year, thereby entitling the lessee to six months notice to quit before yielding possession of the premises to the lessor. Amsden v. Atwood, 69 Vt. 527; 67 Vt. 289. This request was unsound in principle, and properly disregarded.
Defendants contend that, by reason of the submission to ■arbitrators, the plaintiff is barred from maintaining this action, and that his only remedy is upon the bond given by the defendant Sowles, to abide and perform the award. This contention is untenable. Notwithstanding the agreement not to revoke the submission, either party had the right so to do at any time before an award was made and published. Aspinwall v. Tousey, 2 Tyler, 328; People v. Nash, 111 N. Y. 310, 7 Am. St. Rep. 747. And when the submission was revoked, it was no bar to this action. Chit, on Con. 884:; Day v. Essex County Bank, 13 Vt.
The action of the County Court in overruling defendants’' motion to set aside the verdict on the ground that the damages were excessive, is not revisable here. Sowles v. Carr, 69 Vt. 414.
The granting of a certified execution, rested largely in the discretion of the County Court upon the facts found by it, and is not revisable in this court. Melendy v. Spaulding, 54 Vt. 5l7.
This disposes of all the questions raised by the exceptions in which defendants, in argument, claimed there was error, and. none other are considered.
Judgment affirmed.
