Russell v. Brooks

27 Vt. 640

• Court: Supreme Court of Vermont
• Decided: September 15, 1855
• Status: Published

Opinion

The opinion of the court was delivered by

Isham, J.

The execution in favor of Morrill against Fletcher Russell, though levied on the land in question within sixty days from its date, was not returned into the office of the county clerk from which it issued, until long after its return day. The same fact exists in relation to the execution in favor of Jacobs against Russell; that execution, though levied on these premises also, was not returned to the justice within its life. The defendant took possession of the premises in question under a title claimed to have been derived by those levies. Under those circumstances, the decisions in this state have been repeated and uniform, that the levies are void, and that no title or interest in the land was acquired by them. The defendant is as much a stranger to any title in the land, as if no judgment had been obtained against Fletcher Russell, nor any levies of such executions had ever been made; Hall v. Hall, 5 Vt. 304; Downer v. Hazen, 10 Vt. 418; Morion v. Edwin, 19 Vt. 77.

The plaintiff had a good title to these premises, under his deed from Fernando C. Jacobs, and that title remains in him, unless it has been conveyed to Fletcher Russell, which the defendant affirms was done, but which is denied by the plaintiff. It also appears, from the case, that the plaintiff was in the actual possession of the premises, until dispossessed by the defendant. This possessory right and title of the plaintiff is sufficient to enable him to sustain this action against the defendant, and all others, who have not a better title. If the defendant had derived a good title, as against Fletcher Russell, under those executions, the question would properly arise, whether a conveyance of these premises had been made to him by the plaintiff But the levies being void, he does not hold his title, nor can he claim possession under him. It is not competent for the defendant, having no title to the land, to put the question in issue, whether the plaintiff has executed an unrecorded deed of the premises to Fletcher Russell. That can only be done by Mr. Russell himself, or some one having his title. If such a conveyance had been made, as the defendant has no title to the premises, it would not aid him, nor in any way affect the right of the plaintiff to recover in this action.

The judgment of the county court is affirmed.