Sellick v. Starr

5 Vt. 255 | Vt. | 1833

Hutchinson, C. J.

This is an action of ejectment for the land on which the defendant’s office stands. The plaintiff claims title to the same by virtue of a deed from Epa-phras Miller.

The defendant contends, that he ought to be protected in his possession, either by the Statute of Limitations, or the presumption of a grant, or lease, from said Miller, of a life estate in the premises. He urges this from various circumstances, detailed in the bill of exceptions.

It there appears, that the defendant had a deed and lease for his life, from Miller, of the other piece of land, on which ~ the defendant’s office was first erected ; that Miller, with the consent of the defendant, moved the defendant’s office from said premises, where it was erected, on the defendant’s life estate, to its present location, and erected a permanent building where this office first stood, and extending on to land of said Miller, where he has occupied it till his title has become established by the Statute of Limitations, if he claimed to possess in his own right, as appears probable by the bill of exceptions. ' It also appears, that the defendant has occupied his office, in its present location, more than fifteen years — ever since September, 1812, without paying rent, and without any demand of rent by Miller; and that the defendant several times asserted, that he had a life estate in the office and land. The defendant contended, that all these circumstances together were sufficient to warrant such presumption, without showing a deed or lease; notwithstanding Miller testified, that he never gave any deed or lease, as he recollected.

We cannot read this statement without strongly suspecting, that it was probably the understanding of Miller and the defendant, that the defendant should occupy his office, in its new location, as long as he would have had a right to occupy it, in its first location. And, after fifteen years possession, perhaps after a shorter period, the defendant possessing without demand of rent, it ought to be presumed, or rather, the jury might well presume, that such understanding was perfected by a life lease, in the outset; though that lease is not now to be found, nor is recollected by Miller.

Indeed, a contrary position would seem incredible, either in reference to Starr or Miller. That Starr should permit Miller to move his office from his own life estate, upon land of Miller, and erect upon this life estate a permanent building for the use of Miller, and extending to Miller’s other lands, and the defendant have no compensation for this, and have no security against his being ousted any day, is not easily to be credited. Nor, can we believe, that Miller did all this without some security that the defendant should not claim possession, during his life, of the portion of this new building, which stood on the de-fondant’s life estate. And the longer the parties acquiesced in this new arrangement, and peaceably occupied the respective buildings in conformity with it, the stronger is the presumption, that each confirmed the exchange by an appropriate conveyance to the other. The eighteen years possession by each, with no demand of rent, and no marks of acknowledged tenancy, is sufficient to put the question at rest during the life of the defendant. Any thing is to be presumed ,which might lawfully exist, to quiet so long a possession. In 4th Term Reports, 682, Syburn vs. Slade, the lessors of the plaintiff produced a lease from one Geo. Pym, who had been of age about four years. It appeared, that the estate had been given by will to trustees, in trust to convey to George Pym on his arriving at the age of twenty-one years. The plaintiff was nonsuited because the legal title was in the trustees. The nonsuit was set aside in Bank; Lord Kenyon and the whole Court agreeing, that there was no reason why the jury should not hav e presumed a conveyance from the trustees to George Pym; adding, it was their duty to have thus conveyed, and it must be presumed they did their duty.

In the 11th of East. Rep. 376, Trustees vs. Merryweather, it was holden, that six years use was sufficient to found the presumption of a dedication.

In the 4th of Term Rep. 468, Wilkinson vs. Payne, the suit was brought upon a note, which appeared to have been given to induce the plaintiff to marry the defendant’s daughter. The defence was, that, though the plaintiff in fact married the daughter, the marriage was not legal; and the marriage, shown on trial, was not legal. The plaintiff’s wife had died three weeks after he became of age. Till then, they lived together as husband and wife; and were so treated by the connexions, and by the defendant himself. It was left to the jury to presume a legal marriage after the first, which was not legal. This they presumed accordingly; and the Court refused to grant a new trial. This must have been a very short period, though the exact length of it does not appear.

In 1st Phil. Ev. 129, marginal page, is a long note, citing several cases in support of a similar doctrine.

In Gray’s case, 5 Coke, p. 79, one prescribed for right of common, and obtained a verdict. But as the evidence was, that he paid the annual rent of a hen and five eggs, a question arose, whether the verdict could stand, unless it were also found that he punctually paid this rent. But the Court said the landholder might distrain for the rent.

The defendant’s possession would warrant the presumption of a seizin in fee, were it not for the proof of his taking possession under Miller. But that proof must be taken in connexion with the circumstances of the possession. If he paid rent, he must be presumed to hold on payment of rent. If he pays no rent, and none is demanded, it must be presumed that he was to hold without payment of rent. But the defendant’s possessing in the new location of his office without paying rent, instead of the place where he had a life estate without paying rent, affords a presumption, that he had a life estate in the new location of his office, according to his claim, several times expressed.

In the 1st of Phil. Ev. 127, marginal page, it is said, “ The usage, which is supposed to be founded on a grant or agreement, determines also the extent of the supposed grant. The right granted is considered to be commensurate with the right enjoyed.” This, as applied to the case before us, is the defendant’s enjoying without rent, is evidence of a grant, that he should enjoy without rent. This, of itself, would tend to show a grant in fee; Miller always living in sight of the premises. But, when it is also proved, that he held under Miller, and held this instead of the other piece, in which he clearly had a life estate, the whole tends to show, and would well warrant the presumption, that Miller had executed to the defendant some instrument, which vested in him a life estate in the premises.

This would decide the case, as between Miller and the defendant. But the plaintiff contends, that he is not to be affected by those circumstances, now urged by the defendant, which do not appear of record. It has been decided, that nine years possession under a contract for a deed and an unrecorded deed, was sufficient notice to an after attaching creditor, who procured his attachment to be first recorded. See 2 Vt. R. 544, Rublee vs. Mead.

Starr, Phelps and Bell, for the defendant. Bates & Chip man, for the plaintiff.

Here was a possession of eighteen years, of which the plaintiff could take notice as well as courts and jurors.— And he ought to draw the same presumptions from such possession as they would draw. If he would claim any thing from seeing the office about to be removed from the premises, by consent of the defendant, he ought to have seen the thing perfected before he relied upon it.

Upon a full view of the case, the judgement of the County Court is reversed, rnd a new trial is granted.