Parkhurst v. Edwards

15 Vt. 618

Opinion

The opinion of the court was delivered by

Redfield, J.

The only question to be determined in this case is, whether the plaintiff in-ejectment is precluded from recovering, on the ground of having given a' deed of the land sued for, while there was an adverse possession of the same.

The statute provides that such a deed shall be void. The grantee cannot, of course, recover in his own name. Unless, then, there could be a recovery in the name of the grantor, the right of action, which before was perfect, it may be, against the disseizor, would be lost by the operation of a deed, which the statute provided should have no operation.

But it is said, by that provision of the statute making the covenants operative, the grantor will be estopped from disputing the right of the grantee to the land, when recovered, and thus the deed will, in effect, be made operative to convey the land. This may be true. But it is a result which the law produces, and which the court cannot, and would not, prevent. That provision in the statute must be repealed if it is injurious, or operates to destroy the effect of the general provision of the statute. But we do not see that such is the effect. The deed is void so far as third persons are concerned. Between the parties it was not intended to be made so.

Judgment affirmed,