Fairbanks v. Stowe

• Decision Date: 07 January 1910
• Citation: 83 Vt. 155,74 A. 1006
• Parties: FAIRBANKS v. STOWE
• Court: Vermont Supreme Court

74 A. 1006

83 Vt. 155

FAIRBANKS

v. STOWE

Supreme Court of Vermont. Brattleboro.

Jan. 7, 1910.

Exceptions from Windham County Court; Butler, Judge.

Action by A. A. Fairbanks against Warner W. Stowe. Verdict directed for plaintiff for nominal damages and judgment thereon, and defendant excepts. Affirmed.

Trespass quare clausum for cutting growing trees on land in Halifax. Plea, the general issue; and trial by jury. Verdict directed for the plaintiff for nominal damages, and judgment thereon.

On October 2, 1905, the defendant then being the owner in fee of the farm of which the locus is a part, by his paper writing of that date, called in the case a contract or lease, duly signed, sealed, witnessed by two witnesses, and acknowledged, in consideration of $500 paid to him by Darling, Clark, and Hubbard, sold and conveyed to them "all the growing timber of every description" thereon, excepting and reserving what was on a certain portion thereof described by bounds, said instrument expressly stating that the right and title of the grantees thereunder were not in fee simple, but an estate for years, to extend only for the space of five years from the granting thereof. Said instrument was recorded in the land records of Halifax on November 13, 1905. On October 6, 1905, the defendant quitclaimed the farm to Boyd, who on May 3, 1907, quitclaimed it to Marvin Fairbanks, "excepting the timber right of Darling, Clark, and Hubbard"; and on May 6, 1907, Marvin Fairbanks conveyed the same by warranty deed to the plaintiff, "excepting the lumber right of Darling, Clark, and Hubbard." The alleged trespasses consisted of the defendant's entering upon the land described in said deeds, and cutting thereon certain of the trees conveyed by him to Darling, Clark, and Hubbard as aforesaid. The defendant claimed that he had orally bought the lumber rights of Darling, Clark, and Hubbard, and was acting thereunder in cutting what he did, and claimed that his oral purchase was subsequently, and before he did the cutting, to wit, on June 11, 1908, reduced to writing and signed by Darling and Clark, and it is of the tenor following: "In consideration of sixty dollars paid to us by W. W. Stowe, we agree to sell back the standing timber in the run, so called, and on the side hill back of the old bam. The same is part of the lot sold us by said Stowe in 1905, situated in the town of Halifax." This paper is dated June 11, 1908, and signed by Darling and Clark. It appeared that there was other lumber already cut on the lot that belonged to Darling, Clark, and Hubbard, and no question was made but that they had a right to go thereon to take it away. The plaintiff owned the farm on August 1, 1908, the time of the alleged trespass, and was in exclusive possession thereof, save such rights as were acquired therein and being exercised by Darling, Clark, and Hubbard, and the defendant. The plaintiff offered in evidence a paper writing, dated June 30, 1908, purporting to be an assignment by Darling, Clark, and Hubbard to him of all their right, title, and interest under and by virtue of said contract or lease from the defendant to them, which said paper writing was under seal, had but one witness, was executed in Massachusetts, and acknowledged before a special commissioner. The defendant objected to the admission thereof for divers reasons, and, among them, that as it had but one witness it was not sufficient to convey an interest in land in this state; that it did not appear upon it that the person before whom it purported to be acknowledged was authorized to take the acknowledgment; and that it was not properly authenticated. Thereupon the plaintiff introduced testimony tending to show that by the law of Massachusetts one witness is sufficient to an instrument conveying an interest in real estate, and that the Governor of that state can, with the consent of the council, appoint commissioners to acknowledge deeds, administer oaths, etc. Thereupon the instrument was admitted, to which the defendant excepted. The plaintiff testified that he bought the rights of Darling, Clark, and Hubbard about June 20, 1908, and soon after received said lease from them with said assignment pinned thereto. This was not disputed. The plaintiff also testified that at that time he had no knowledge of the defendant's claim. When said lease thus came into the plaintiff's hands it had this written on the back of it: "Halifax, Vt, June 20, 1908. Town clerk, please discharge this lease"—signed by Darling, Clark, and Hubbard, but not sealed. When the plaintiff rested, the defendant offered to show that the title to the trees in question was in Darling, Clark, and Hubbard at the time of the...