Blodget v. Brinsmaid

7 Vt. 9

• Court: Supreme Court of Vermont
• Decided: January 15, 1835
• Status: Published

Opinion

The opinion of the court was delivered by

Coulamer, J.

The first question in this case, to be disposed of, arises on the demurrer to the plea, that the estate was represented insolvent. When an estate is represented insolvent, and commissioners are appointed to examine and adjust the claims, the statute has provided this new tribunal for the creditors; and therefore the courts of ordinary jurisdiction are superceded in relation to such claims. Most obviously, if no such tribunal is created, the creditors must be left to their ordinary course in the courts of common law, or they are without redress. It is urged, there may not have been time for the appointment of commissioners. This is no answer, as it requires, comparatively, little time, and might have been done even after suit, and been so pleaded; or want of time should have been pleaded as an excuse.

In this State, administration is granted of both the personal and real estate, and they are both assets. Most obviously, the recovery of a final judgment in ejectment, by an administrator, is at least •prima facie evidence of assets. — The only remaining question relates to the effect of the deed from Collard to Brinsmaid, in 1827. It is to be recollected, it was a quit-claim deed of all Burlington, in 1827. In 1834, Brinsmaid, as administrator of Collard, claims and recovers land in Burlington. In the absence of other proof, it would not be presumed, Brinsmaid would, as administrator of Collard, claim land which he owned himself. The presumption would be, that Collard, after 1827, purchased the land, which his administrator recovered in 1834, and that the deed of 1827, being a quitclaim deed, Collard’s subsequent purchase did not inure to the benefit of his former grantee. Had the defendant gone further, and showed this recovery for Collard was on a title prior to 1827, and that Brinsmaid had sued, as administrator of Collard, because of an adverse possession in a third person, in 1827 and onward, which prevented Brinsmaid from claiming on his own deed, it might have tended to show the land the property of Brinsmaid, and explained the recovery being in the name of Collard, or his administrator. But had even this been proved, it might still have been doubtful. The statute of 1807 declares the deed, when there is an adverse possession in a third person, void, but saves the covenants. Now if there be a warranty-deed, a subsequent purchase or recovery by the grantor inures to the grantee, by the legal effect of the warran-iy, to avoid circuity of action. But if there be no warranty, perhaps the deed is in such case wholly void. In this case, however, the defendant put in no proof that the recovery was on a title in Collard before 1827, and so included in the deed to Brinsmaid; nor was that a deed with warranty, so that a subsequent purchase or recovery, by Collard, would inure to Brinsmaid. The land, therefore, recovered by the administrator, in 1834, remained assets. in his hands.

Judgment affirmed.