Wilkins v. Burton

5 Vt. 76 | Vt. | 1833

Hutchinson, C. J.

The breaking and entering the plaintiff’s close, as proved on trial, was the bringing on timbers and erecting a barn on the premises in possession of the plaintiff. The questions, raised on the Bill of exceptions, allowed in the County Court, relate to the tenancy in common of the plaintiff and defendant. There is no intimation, that the defendants acts were inconsistent with this tenancy in common. No expressions proved or offered to be proved, tending to show, that lie would wish to exclude the plaintiff from any part of the premises. It must be taken as an entry consistant with his claim of tenancy in common.

The levies of sundry executions were offered by the defendant, showing, that sundry creditors of Nathaniel Burton had this whole farm set off to them as tenants in common; and this tobe followed with other testimony bringing down such tenancy in common to plaintiff and defendant. These were objected to but admitted. For various seasons, these levies are too defective to convey title from N. Burton to said creditors; but they were correctly admitted to show the character of the possession taken under these levies, which has probably grown into a perfect title. For it does not appear that Nathaniel Burton or any other creditors have ever interfered to hold against these levies. These levies gave, to each creditor, a seizin of an undivided interest through the whole farm; making their possession a tenancy in common. They might be tenants in common of an inchoate right, as well as one that is perfect. This has been decided in a suit before this Court, heretofore, which I suppose related to these same premises. The deed from Tappan and Sewall, two of these creditors, to Kingman was correetlyadmitted. This deed does not, as was contended by the plaintiff’s counsel, convey the whole land, but only their interest in it. This deed so refers to the levies as to give it the same operation as if it, in terms, conveyed the undivided portion, described in the levy to them.

The letter from the plaintiff to Joseph Wiswall was correctly admitted as evidence, to show, that the plaintiff held under Tappan and Sewall. The object of the testimony was, to prove the fact by the concession of the plaintiff.' The subject matter of the letter tends to prove this fact. There appearing to be no such person as Joseph Wiswall, and the actual situation of Ebenezer Wiswall who was one of these levying creditors, calculated to invite such a letter, the jury might well infer that Ebenezer Wiswall was the person, to whom the letter was intended to be addressed, and the word Joseph written by mistake merely. More especially is this the case, when the letter is produced by Ebenezer Wiswall; or, what is the same, by the defendant, to make out his title under said Ebenezer Wiswall.

But the plaintiff’s counsel contend, that the Court denied, that this letter was intended for Ebenezer Wiswall, and not Joseph; and did not leave that question to the jury. We do not so understand the exceptions upon thi3 point. The testimony is stated, which tends to show, that Ebenezer was intended; then the case adds, the Court admitted the letter on the ground, that it was intended for Ebenezer Wiswall, and wrongly directed by mistake. Their meaning must have been, that there was sufficient testimony of that fact to go to the Jury with the letter. Just as when the execution of a note is disputed, it is not permitted to be read to the jury till the Court have heard evidence go to the jury, tending to prove the execution. Then the note is read.

This letter being admitted, and the defendant, having produced a deed from said Ebenezar to himself, dated in the year 1830, showing his right to hold as tenant in com* mon of the whole premises, the plaintiff offered to show, that he held adverse to Wiswall’s title, at the date of Wis-wall’s deed to the defendant. For this purpose he read the record of an action, before that time tried, in favor of said Wiswall against him the plaintiff, charging the plaintiff as Bailiff and receiver to said Wiswall of the rents and profits of the lands included in said several levies. Wilkins had plead, that he was never Bailiff and receiver and issue was joined, and two verdicts for him, (Wilkins,) the defendant, in that action. The charge of the Court upon this evidence is objected to. This evidence Was left to the jury, for them to weigh, accompanied with the observation from the Court, that it was of very little weight upon the present issue. It is objected now, in argument, that this was giving an opinion upon the weight of evidence. We do not practice giving our opinion to the jury upon the weight of evidence; nor are we prepared to decide such a proceeding to be error. But sureiy it cannot be error in this case, where the observation made by .the judge was strictly correct. The issue, in that case, v/as not formed upon the fact, whether Wiswall and Wilkins were tenants in common; which would have been the proper fact to put in issue, if the action was brought under our Statute, and Wiswall relied upon his^tgpancy in common with Wilkins, as a ground of recovery ; but the issue was formed upon the fact, whether the said Wilkins was Bailiff and receiver of said Wiswall. This might have been decided in favor of Wilkins on the ground, that no rent and profits had been received ; or for want of some contract to bind him as Bailiff and receiver to the said Wiswall. This was so very light testimony on the question of tenancy in common, or of adverse possession, raised in this action, it is even doubtful, whether it was admissible at all, as evidence upon such issue. That being an action as Bailiff and receiver, it must be taken to be a charge that the defendant was so by appointment; and the question of tenancy in common could not legally arise. Will. Rep. 208, Wheeler vs. Horne.

Read, for plaintiff. Hunt & Beardsley, for defendant.