Capen's Adm'r v. Sheldon

• Decision Date: 01 August 1905
• Citation: 61 A. 864,78 Vt. 39
• Parties: CAPEN'S ADM'R v. SHELDON et al.
• Court: Vermont Supreme Court

61 A. 864

78 Vt. 39

CAPEN'S ADM'R

v. SHELDON et al.

Supreme Court of Vermont. Rutland.

Aug. 1, 1905.

Exceptions from Rutland County Court; Seneca Haselton, Judge.

Trespass on the freehold by Ahasuerus Capen's administrator against Charles H. Sheldon and another. Judgment for plaintiff, and defendants excepted. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, WATSON, and POWERS, JJ.

Butler & Moloney, for plaintiff. M. C. Webber, for defendants.

ROWELL, C. J. This is trespass for cutting timber on lot 19 in the third division in Mendon, drawn to the right of the first settled minister. The plaintiff sues as administrator of the estate of Ahasuerus Capen, and claims title by deed, and, failing that, title by possession sufficient to enable him to recover against the defendants, who are strangers to all title. The defendants claim that the plaintiff has neither the legal nor a possessory title, and therefore cannot recover.

The plaintiff introduced in evidence a certified copy of the charter of the town of Medway, now Mendon, granted by the Governor of this state on February 23, 1781, whereby a tract of land particularly described was granted to the 35 persons named therein, their heirs and assigns, to be divided into equal shares, four of which were to be appropriated to the use of the public, and one of those "for the first settled minister of the Gospel in said town," and whereby said tract was incorporated into a township by the name of Medway, and the then and future inhabitants thereof declared to be enfranchised and entitled to all the privileges and immunities that other towns by law exercised and enjoyed; habendum on condition that each proprietor, his heirs or assigns, should plant and cultivate five acres and build a house not less than so large on the floor, or have one family settled, on each right or share within three years from the 1st day of the then next June, on penalty of forfeiture of each right or share not so settled and improved, the same to revert to the freemen of the state, to be by their representatives regranted to such persons as should appear to settle and cultivate the same. The plaintiff also introduced the record of the divisions of the land in said town, setting out lot 19, and the proprietors' records of the allotments in the second and third divisions, showing the minister's right" to be No. 19 in the third division. The plaintiff also introduced a certified copy of the record of a quitclaim deed of said lot from one Elbridge Wellington to the town of Mendon, dated January 25, 1836, wherein the grantor described himself as having been that day regularly installed as minister over the Mendon Union Religious Society, and as being the first settled minister in said town. But it did not otherwise appear whether he was such minister or not. The plaintiff also introduced a warranty deed from the town of Mendon to himself and one Stratton, dated July 19, 1872, and recorded the 22d of said July, purporting to convey said lot to them in fee for $1,000, and describing it by metes and bounds and courses and distances, and also as lot 19 in the third division of lots in said town, and reciting that the deed was given pursuant to a vote of the town "to sell No. 19, third division, known as the 'Minister Lot'"

It appeared that Daggett and Stratton mortgaged the lot to the town for part of the purchase money, which was foreclosed and a decree obtained, and that on July 24, 1876, the town quitclaimed the lot to Daggett, who on the same day quitclaimed it to the intestate. Both deeds were recorded that day, and both describe the lot as it was described in the deed from the town to Daggett and Stratton. But it does not appear that said decree became absolute; for, whatever effect the recital in Daggett's deed that it did become absolute might have against him in some circumstances, he is not bound by it here, for the defendants cannot take advantage of it, being strangers to the deed, and estoppels must be mutual. And, indeed, they do not seek to take advantage of it; nor do they otherwise claim that the decree became absolute, and in fact it did not, as shown by Daggett v. Mendon, 64 Vt. 323, 24 Atl. 242, to which we are referred in argument.

The plaintiff claims that the recital in Wellington's deed to the town that he was the first settled minister is proof that the fact was so, and that therefore his deed conveyed the fee. But, whatever effect that recital might have as between the town and its grantees and those claiming under them, the defendants, who are strangers to the deed, cannot be bound by it any more than they can take advantage of the recital in Daggett's deed. Davis v. Moyles, 76 Vt. 25, 33, 56 Atl. 174. Wellington's deed, therefore, must be laid out of the case.

The plaintiff also claims that the legal title to the lot vested in the town originally, in trust for the use to which it was appropriated, determinable on the settlement of the first minister in the town; and we think that is so, for, although the grant is to the proprietors, they took, not in their private, but in their corporate, capacity. Montpelier v. East Montpelier, 27 Vt. 704; White v. Fuller, 38 Vt. 193, 200. The defendants claim that, as it appears that the lot is wooded and wholly uninclosed, it long since became forfeited under the condition of the charter requiring settlement and cultivation within three years. But forfeitures are odious in law, and are never presumed, but must be proved. This is a condition subsequent, and not a limitation, and, without considering whether the shares "appropriated to the use of the public" are within the condition, it is enough to say that a breach of the condition would not defeat the estate until the state asserts its right to enforce a forfeiture, and that, the grant coming from the state, no individual can assail the title for nonperformance of the condition. Schulenberg v. Harriman, 21 Wall. 44, 63, 22 L. Ed. 551; Bybee v. Oregon & California R. R. Co., 139 U. S. 663, 675, 11 Sup. Ct. 641, 35 L. Ed. 305.

The plaintiff claims that the town's deed to Daggett and Stratton, though purporting to convey the fee, operated upon the legal title, and vested it in the grantees subject to the use when it arises, and that the intestate took that title from Daggett. The defendants claim that said deed is void, because in contravention of the statute, which authorized only a lease reserving rent, to be annually paid into the town treasury. It is true as a general proposition, except as modified by statute, that a conveyance by a trustee, whether to an innocent purchaser or not, and whether in contravention of the trust or not, operates upon the legal title and vests it in the grantee. But conveyances in fee of our public lands, when the statute authorizes only leases reserving rent, are void as conveyances. Bush v. Whitney, 1 D. Chip. 369; Lampson v. New Haven, 2 Vt. 14; Williams v. Goddard, 8 Vt 492, 500; White v. Fuller, 38 Vt 193, 205; Victory v. Wells, 39 Vt. 488, 495. But they may operate as licenses to enter. Lampson v. New Haven, 2 Vt. 14.

As the plaintiff does not claim that the defendants, being strangers to the title,...