McGrady v. Miller

14 Vt. 128

• Court: Supreme Court of Vermont
• Decided: January 15, 1842
• Status: Published

Opinion

The opinion of the court was delivered by

Bennett, J.

The doctrine is a familiar one that a prior possession is sufficient to maintain trespass or ejectment against a stranger. The only question in the case is, do the exceptions show that Joseph Mott, under whom the defendants claim protection, show a subsisting prior possession to the possession claimed by Hoxsie. It appears that Joseph Mott, about forty years since, claimed the land,and individuals lived on the same under him; and that his last tenant left the premises about the year 1815. Yet it appears that, in 1817, Mott deeded the premises to another, and they were redeeded to Mott in 1820 ; that in 1822 he again deeded them and they were again redeeded to him ; that they had always been claimed by him as his right, and that he and those under him had at different times, and asíate as 1832, taken timber from the land, or licensed others to do it. It seems, from the case, that some seven or eight years before the commission of the trespass complained of, Hoxsie, under whom the plaintiff claims the house, entered upon the premises and built upon them.

There is no evidence that Mott had, at this time, abandoned the possession. Under our law, when a man enters into possession of land, he is presumed to enter and claim in his own right. So if a man has a deed of lands, this gives character to his acts, and they are to be taken as the acts of an owner and not a trespasser. The court should not then have charged the jury as requested.

For aught that appeared, Mott had the right of possession, and the plaintiff could not recover unless he was in as tenant to Harrington, who stood as mortgagee to Mott. This the jury negatived.

Judgment affirmed.