Soule v. Barlow

49 Vt. 329

• Court: Supreme Court of Vermont
• Decided: January 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by

Wheeler, J.

As this case now stands, it shows no record evidence of title nor color of title in any one until the record of the assignment to the defendant, March 30, 1840, of the land in question. Nor is there anything in the case that shows who was during the time in question the rightful owner of it, further than as the facts shown tend lo show a right acquired by possession. It is said that the plaintiff introduced a deed from Ool. Barlow, understood to be Bradley Barlow the elder, to Andrew Bradley apparently, with evidence tending to show that it was made to Anson Bradley really, and claimed that it covered this land, and that therefore he claimed title from Col. Barlow from whom the defendant also claims title, and is estopped from denying that Col. Barlow had good title, on the principle that where two parties claim title from a common source, neither will be heard to deny that a good title could come from that source. But the court held that if that deed was in fact a deed to Anson Bradley, it did not cover this land, and that the plaintiff could have no claim to this land under it. That-decision was acquiesced in by the plaintiff, and thereafter his claim to the land stood on other grounds, and not at all from or under Col. Barlow, and he was not thereafter as to his other grounds of claim bound to admit nor estopped to deny title in Col. Barlow. The trial was upon his other claims, and, as the court held, there was nothing to show even color of title in Col. Barlow against them. The case therefore is to be determined upon the facts shown without reference to any color of title or actual rightful title till the defendant got color in 1840. The plaintiff’s evidence tended to show, and this does not appear to have been much if at all disputed, that in 1822 this lot was inclosed with - the Bradley farm by a fence, and that in the spring of that year he went into the occupation of the farm, and during that spring he cut fhewood, rails, and timber on the lot, and had done so every year ever siuce. If he had had color of title to the lot and claimed title under his color, that would have extended these acts of possession and his claim to the whole, and he would have acquired adverse possession to the whole. If the situation of the lot, and of the fence inclosing it with the farm, had been such that the fence had indicated unequivocally that the plaintiff in his occupation of the farm in the inclo.sure was claiming the whole land inclosed by the fences, the fences would have the same effect as the color of title, but the situation was such that the fences might indicate that they were put where they were for mere accommodation and convenience in fencing the farm, and not for the purpose of inclosing this lot, as was held when the case was before iu this court,

* and that they would not show any claim to this lot. Whether the fences did indicate a claim to the lot, was a question, for the jury, and they have found that question for the plaintiff. The defendant claims that this finding was under erroneous instructions, and whether it was or not, is one question to be determined here. On this subject the court charged, that if these fences were built to the creek, whereby they inclosed this lot, as a matter of convenience, or because less expensive, it was not in the assertion of a claim of right to the land ; that to have much weight as evidence it should appear that they were so constructed that the parties, at least those having an .interest in the land, would, in the use of ordinary diligence, be likely to observe and notice them ; that if so built under a claim of right, it was strong evidence of possession, and that adverse possession, to get title, must be peaceable, notorious, and exclusive. This, taken all together, would seem to require the jury to find that the plaintiff claimed this lot as his own, and indicated by his fences to any ordinary observer interested to inquire, that he so claimed it, and that what he was doing upon it from year to year was being done under his claim. When his fences were so maintained upon the land that they would indicate that he was claiming it to the fences in extent, they would have the same effect in extending the effect of acts of possession that color of title would, and give him constructive possession in the same way. Buck v. Squires, 23 Vt. 498 ; Wood v. Willard, 37 Vt. 377 ; Morse v. Churchill, 41 Vt. 649.

It is urged that the court should have instructed the jury to find who first got possession of the lot, as it might, upon the evidence, be found that Col. Barlow or the defendant did. But there was no evidence that Col. Barlow ever took any possession, or did anything that w'ould indicate that ho claimed this particular swamp lot, and nothing but the mere hearsay testimony of Lucy Barlow to what Hubbard Barlow said, that he claimed any of the lots. And the evidence of the defendant did not tend to show that he took or claimed any possession until 1840, about eighteen years after the plaintiff’s possession probably commenced, if it commenced at all. And further, the exceptions do not profess to set out the whole charge, nor show that.the court was requested to charge as the defendant now claims should have been charged and refused, so that for anything that appears, the court did so charge. There being no request on this subject and refusal shown, there is no error shown in this respect, unless there was error in the charge, and none is discovered. The charge as to interruption of possession once commenced, appears to have been strictly correct, for the evidence of the defendant about the acts of Hubbard Barlow, if it was competent, only tended to show what would amount to constructive possession in Col. Barlow, under whom he; acted, in case no one else had possession. But if the plaintiff had constructive possession, nothing short of actual possession would divest him. of it. Crowell v. Beebe, 10 Vt. 33 ; Ralph v. Bayley, 11 Vt 521.

The only other point of importance is in respect to the refusal to charge as requested concerning the acquisition of title by possession commenced during the minority of the defendant. The request was, to charge that the plaintiff could-not commence to gain title after the defendant had color of title during his minority. It is true that no right that a minor has can be lost by the mere running of the Statute of Limitations during his minority. But the request does not involve the losing a right at all. It is not’based on th'c supposition that the minor has any right, but only the mere color of a right, to lose. The acquisition of property by prescription to which a minor has mere color of title without right or possession, would be acquiring the property of some one else, and not be defeating or obtaining any right of his, and, at most, as to him would be merely preventing him from obtaining the property of others in the same way. It cannot be successfully maintained that a minor is entitled to any superiority over adults in acquiring the rights of other adults by possession. The request involved this claim, and was not sound in law. And there was no legitimate evidence in the case on which to base a request in this respect that would be sound in law, for there was nothing but mere hearsay objected to, that tended to show that his testator ever had even a parol title to the lots.

Judgment affirmed.

48 Tt. 132.