Town of Lemington v. Stevens

| Vt. | Aug 15, 1875

The opinion of the court was delivered by

Redfield, J.

This is an action in assumpsit in the general counts. The plaintiff seeks to recover the stumpage value of timber cut and drawn from lot No. 48 in said town, drawn to the right of the first settled minister. The selectmen of towns, by statute, have the right to lease such lands for five years, or until a minister shall be settled. Gen. Sts. c. 27, s. 8. Two of the selectmen of said town executed a lease of this lot, including sot-. eral other lots sequestered to other uses (upon which the statute imposes no restraint or limit as to time), to one Holbrook and his heirs and assigns, “ as long as wood grows and water runs, or as we the selectmen have a right to lease the same.” Holbrook assigned his right under the lease to the defendant. . The lease was not acknowledged until after the selectmen who had executed it had gone out of office.

I. It is claimed that the lease is void because it attempts to grant a longer term than the statute allows. But we think that the alternative in the lease had reference to the limitation in the statute as to this class of lands. And the term was without limit as to a portion of the lots, and as to this lot, it was so long “ as we the selectmen have a right to lease the same.”

II. It is claimed that the lease is inoperative because not acknowledged. But as to the grantor the lease was obligatory. Gen. Sts. c. 65, s. 1, et seq. And when the grantee goes into possession under a written agreement, and conforms to the terms of it, the rights of the parties are to be regulated by the terms of the contract.

But this lease was duly acknowledged December 26, 1872, after the selectmen went out of office ; and we think that such acknowledgment was effectual. The 11th section of said chapter provides for citing the grantor before a magistrate, to appear and acknowledge his deed ; and if he declines, the magistrate may take proof of its execution ; and if satisfactory, may endorse the fact of such proof on the deed, which shall make the deed effectual. We do not see why a subsequent voluntary acknowledgment should not be as good as one by compulsion.

III. The case shows that the defendant offered to give a guaranty against damage to the lot by cutting and removing the timber; and if the guaranty offered was not a compliance with the requirement in the lease, the plaintiff does not proceed on the ground that the lease has been avoided by act of the defendant, but rather that the lease was never operative.

IY. If the defendant could be regarded as a tort feasor in removing the timber, still, as the plaintiff avows that he seeks to recover the net proceeds, or the value of the “ stumpage,” the defendant has not received sufficient to pay him for cutting and marketing the timber, unless the unpaid order on Danforth for the balance, $998, is to be treated as money in defendant’s hands, which, we think, may admit of grave doubts.

Judgment of the. County Court is reversed, and cause remanded.