Town of Middletown v. Town of Pawlet

4 Vt. 202

• Court: Supreme Court of Vermont
• Decided: February 15, 1831
• Status: Published

Opinion

Thompson, J:

We learn from the copies of the pleadings,Sic., delivered to the Court, that the town at Middletown procured an order of removal; and an actual removal, of one Miner Branch and his family,from said Middletown to Pawlet ;■ and gave the notice which the statute requires. From this order, an appeal was taken to the county court, by said town of Pawlet; and there duly entered for trial. The appellants,in presenting their defence, filed two pleas: first, That said pauper and his family were not, aor were any of them, likely to become chargeable to said town of Middletown, at the time of making said order of removal. Secondly, that said pauper, at the time of said order of removal, was well seized and possessed, in his own right, of a certain messuage and lands and tenements, situate, lying and being, in Middletown aforesaid, on which he then resided with his said family. Both pleas concluded with a verification. The said town of Middletown replied to both these pleas, in one replication, that the said pauper and his family, at the time of making the order of removal, were likely to become chargeable to the town of Middletown; which they pray may be enquired of by the country. To this replication, the appellants demurred specially, setting down, among other causes, that said replication does not confess nor deny, nor otherwise answer, the matters and things, set forth by the appellants in their second plea in this behalf.

On reading these pleadings it is obvious that the replication, professing to answer both pleas, entirely fails to answer the second plea. The only question, therefore, is, whether that plea contained sufficient matter to require any answer.

The appellants, in support of their second plea, rely upon the case of Londonderry vs. Acton, which was decided in Windsor county, at the February term of this Court, 1830.

* In that case, the pauper was seized of land in fee, having the absolute title, though the value was-not great. From this he bad been removed to Acton ; and this Court decided that he was unduly removed, upon the principle that he could not be removed from his freehold estate. In the present case, the plea alleges that he was seized and possessed ofland, &c., in his own right. The term seized is technically applicable to a freehold estate ; but it can only be so by intendment, as it is often used to import a chattel interest only. A tenant for life can no more he said to be seized in his own right, than a tenant for years ; for both are seized in the lessor’s right. A person may be said to be seized ofland, or possessed of goods and chattels. And, in some states, a man is deemed to be seized ofland, for some purpose, when he is in by disseizin, and has no title but a naked possession. It is necessary that the plea should contain such direct averments, as will require no technical presumption to make them amount to a description of a freehold. We consider the second plea bad, and the replication isa sufficient answer to it; and the judgement of the county' court, which was, that the replication was insufficient, must be reversed. But the appellants may amend their pleadings on terms. This they choose, and time is given for that purpose.

Bates & Ciarle, for appellees. Roy.ce & Hodges, for appellants.

See 3 Vt. Reports, 122.