69 Vt. 414 | Vt. | 1897
The plaintiff could not recover without showing that the defendant was in possession when suit was brought, which was in June, 1894. It appeared that on February 1, 1883, the defendant took a-perpetual lease of the demanded premises and then went into possession thereunder, and .remained in possession and actual occupancy until the fall of 1893; but he claimed, and the testimony on his part tended to show, that between that time and the commencement of the suit, he surrendered possession to the plaintiff with her consent, and that she accepted and received possession at his hands, which she denied.
The court correctly charged that the defendant could not rid himself of possession by abandoning the premises without acceptance of possession by the plaintiff and
There are many cases illustrative of this rale. Thus, I prove that a debt was due to me a year ago ; the burden is on the debtor to show that it is paid or otherwise discharged. Farr v. Payne, 40 Vt. 615. Where the defendants relied on the statute of limitations, the plaintiff proved that they resided out of the State when the cause of action accrued; held, that it must be presumed that they continued thus to reside, and that the burden was on them to show that they did not. Rixford v. Miller, 49 Vt. 319.
The fact that a m an was a professional gambler twenty months ago, is. presumptive evidence that he is such now. McMahon v. Harrison, 6 N. Y. 443.
So when possession is admitted or proved, whether of real or personal property, we may infer as a presumption of fact, for the purpose of determining where the burden of proof lies, that the possession is continuous. II Whart. Ev. § 1286. Thus, A was in actual possession of land in March, claiming title. It will be presumed that he was in such possession in May following, when ejectment was brought against him, unless he shows that he had abandoned possession. Chilson v. Buttolph, 12 Vt. 231. So if the seisin of a party is proved, the presumption is that it continues, and the burden is on him who alleges a'disseisin;
The plaintiff excepted to the refusal of the court to charge as requested concerning the right of the defendant to surrender. But we think those requests were sufficiently complied with when the court told the jury that there could be no surrender without the consent and acceptance of the plaintiff. With such consent and acceptance, there certainly could be a surrender of possession that would defeat this action.
The testimony of Mr. Austin was admissible, as it was in rebuttal of material testimony given by Mr. Sowles.
The motion to set aside the verdict as against the weight of evidence was addressed to the discretion of the trial court, and therefore its decision overruling it is not revisable here. Newton v. Brown, 49 Vt. 16; Stearn v. Clifford, 62 Vt. 92.
Reversed and remanded.