Frank B. Pope v. Catherine G. Hogan, Gideon Gagne And Margaret H. Gagne

• Decision Date: 12 February 1918
• Citation: 102 A. 937,92 Vt. 250
• Parties: FRANK B. POPE v. CATHERINE G. HOGAN, GIDEON GAGNE AND MARGARET H. GAGNE
• Court: Vermont Supreme Court

102 A. 937

92 Vt. 250

FRANK B. POPE v. CATHERINE G. HOGAN, GIDEON GAGNE AND MARGARET H. GAGNE

Supreme Court of Vermont

February 12, 1918

Special Term at Rutland, November, 1917.

EJECTMENT. Trial by jury at the December Term, 1916 Bennington County, Miles, J., presiding. Verdict for plaintiff. Defendants excepted. The opinion states the case.

Reversed and remanded.

J K. Batchelder for defendants.

Holden & Healy and F. C. Archibald for plaintiff.

Present: WATSON, C. J., HASELTON, POWERS, and TAYLOR, JJ.

OPINION

TAYLOR

The action is ejectment and the premises in question are a portion of a tract of land with two dwelling houses thereon formerly owned by Patrick Hogan and his wife Ellen as tenants by entireties. They had acquired title to the whole as early as 1879 and lived for many years thereafter in the southerly dwelling house. The defendant Catherine G. Hogan is the widow of John Hogan, a son of Patrick and Ellen, and was in possession of the northerly dwelling house at the time this suit was brought. John Hogan died in July, 1907. In November, 1913, Patrick and Ellen Hogan conveyed the whole tract by quit-claim deed to Patrick Hogan, Jr., and Catherine Durbin, their only living children, excepting and reserving to themselves and to the survivor the use, occupancy, control, rents and income thereof during their joint lives and the life of the survivor. Patrick Hogan died in November, 1915. April 24, 1916, Ellen Hogan joined with said children in a conveyance of the whole tract to the plaintiff. Such is the title under which the plaintiff claims.

The defendants claim title to the northerly dwelling house and adjacent land through John Hogan by adverse possession. Their claim is that early in 1883 Patrick and Ellen gave the northerly house and lot with definite boundaries to John; that he immediately went into possession and lived there with his family until his death, more than 24 years; and that during all that time he claimed to be the owner of the premises and had full control and open, notorious and continuous possession thereof. The trial was by jury with verdict for the plaintiff. Most of the defendants' exceptions relate to evidence offered in support of their claim of title. Several of the exceptions raise questions of the admissibility of parol evidence of the gift, the competency of Catherine Hogan as a witness thereto, and the admissibility of various statements of Patrick and Ellen in the nature of admissions that John was the owner of the property. These exceptions are so related that, in the main, they do not require separate treatment.

The substance of the evidence offered and excluded concerning a gift was that both Patrick and Ellen gave the place to John as his own; that just before he moved onto the premises Patrick called at the tenement where John was then living and had a talk which resulted in Patrick's giving him the place; that the same day John moved his family into the house; and that later the same day Ellen called and in effect reaffirmed what Patrick had said. It was offered to show these conversations by Catherine Hogan. Plaintiff objected that she was incompetent under P. S. 1589, as amended by No. 85, Acts of 1910. It is argued that in legal contemplation the husband and wife are one; and that, though the claimed gift was to John, Catherine would be a party to the contract and so disqualified by the statute from testifying. But she was not the donee and had only an inchoate interest in the subject of the gift. Clearly she was not a party to a contract "in issue and on trial" within the meaning of the disqualifying statute. However, assuming that she was a party, still she would not be an incompetent witness. Ellen Hogan, one of the "other party" was still living. It was held in Dawson, Adm'r v. Wait, 41 Vt. 626, construing this statute, that it was the death of a sole party or if more than one, the death of all, that operates to exclude the other party from testifying in his own favor. See also Bradish v. Belknap, 46 Vt. 1; Orr v. Clark, 62 Vt. 136, 19 A. 929.

It was also objected that the offered evidence was inadmissible because Patrick was not the sole owner of the property. The argument is that he could not alone by deed convey any interest in such an estate, much less could he dispose of it by a parol gift. Corinth v. Emery, 63 Vt. 505, 22 A. 618, 25 Am. St. Rep. 780, is cited to this proposition. We are not now concerned with the question as to the power of the husband alone to dispose of premises held with his wife as tenants by entireties for here the offer was to show that Patrick and Ellen joined in the gift to John, which obviates this objection.

It was further objected that the testimony was inadmissible under the Statute of Frauds, upon the theory that real estate cannot, at law, by conveyed by parol gift; and, besides, that parol testimony would be inadmissible to defeat the record title. A similar claim was advanced in Waterman v. Moody, 92 Vt. 218, 103 A. 325, where the question was whether declarations by one holding the title to real estate, against an existing interest, were admissible against a party succeeding to the title. It was held that disserving declarations of a former owner made before parting with the title are admissible against those claiming under him on any issue relating to title, ownership or possession which may be proved by parol evidence. The Statute of Frauds is in no way involved, as the defendants are not seeking to have a contract respecting real estate enforced. It may be conceded that a parol gift of land conveys no title and operates only to create a mere tenancy at will, capable of revocation or disaffirmance by the donor at any time before the bar of the statute is complete. But no principle is better settled than that a parol gift of land may ripen into a perfect title by adverse possession. 1 R. C. L. 753; 2 C. J. 150. All that the defendants claimed was the right to show that John Hogan went into possession under a parol gift, as affecting his acquisition of title by adverse possession.

It was held in Pope v. Henry, 24 Vt. 560, 565, that one going into the possession of land under a parol gift, and remaining quietly in possession for 15 years acquires good title by the mere acquiescence of the donor; and that the possession is regarded as quiet unless interrupted by a forcible ouster, or legal proceedings for that purpose. At least there can be no doubt that such a gift, accompanied by entry thereunder with claim of ownership, would evidence the beginning of an adverse possession which, if continued without interruption for 15 years, would mature into a good title.

It has been held that a gift of land by parol, accompanied by an actual entry and possession, manifests the donee's intention to enter and take as owner and not as tenant. Mitchell v. Chicago, B. & Q. Ry. Co., 265 Ill. 300, 106 N.E. 833; Nulton v. Nulton, 247 Pa. 572, 93 A. 630; New Haven Tr. Co. v. Camp, 81 Conn. 539, 71 A. 788. It follows that it was vital to the defendants' claim to show that the original entry was not in subordination to the title of Patrick and Ellen; for, if John's entry was under this title and not under the gift, much more would be required to set the statute in motion. Then, to give the possession an adverse character, either actual notice of an adverse claim would have to be brought home to the owners, or some overt, notorious and unequivocal act or acts indicating a disavowal of their title of such a character that notice would be presumed, would have to be shown. See Waterman v. Moody, supra; Kirby v. Kirby, 236 Ill. 255, 86 N.E. 259.

The suggestion that defendants ought not to be heard to complain because while the...