Frank W. Smith v. Vermont Marble Co.

Decision Date05 May 1926
Citation133 A. 355,99 Vt. 384
PartiesFRANK W. SMITH v. VERMONT MARBLE COMPANY
CourtVermont Supreme Court

May Term, 1923.

ACTION OF EJECTMENT. Pleas, general issue and title by adverse possession. Heard on referee's report by the court at the March Term, 1922, Rutland County, Moulton, J., presiding. Judgment for recovery of part, only, of premises. The plaintiff excepted. The opinion states the case.

Judgment reversed and judgment for the plaintiff to recover the seizin and possession of the premises in question and his costs.

Charles H. Darling and E. C. Mower for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER JJ.[1] JUSTICE TAYLOR concurred in this opinion, but deceased before same was handed down

OPINION
POWERS

The action is ejectment for a piece of quarry land in the town of Pittsford. The defendant's answer contains the general issue and asserts title by adverse possession. The trial below was before a referee, on whose report judgment was rendered for the recovery of a part, only, of the premises in question. The plaintiff brings the case here on exceptions. The case was argued in this Court at the May Term, 1923, and when, at our last May Term, an opinion was handed down which reversed and remanded the case, the defendant filed a motion for reargument. In due course, this motion was granted, and the case was reargued at the last January Term. Upon a re-examination of the exceptions we have reached the conclusions herein recorded.

The land in question lies in the southwest corner of the so-called Griffith Farm, which takes its name from its former owners, D. J. and J. H. Griffith. Next south of this farm, lies one formerly owned by D. M. and L. F. Burditt and now owned by the defendant, known as the Burditt Farm. The land in dispute extends easterly along the north line of the Burditt Farm some eight hundred feet, to a point a little beyond the middle of that line. From that point on to the east line, the remainder of the Griffith Farm borders the Burditt Farm. The plaintiff once owned both the land in question and the Burditt Farm. At some time prior to May 16, 1890, he conveyed an undivided fourth of this farm to E. R. Brainerd, and on that day, by warranty deeds, Brainerd conveyed his one-fourth, and the plaintiff his three-fourths, of the Burditt Farm to the Smith & Brainerd Marble Company, a corporation in which they were largely interested. In both of these deeds to the corporation, the land conveyed was described as being land formerly owned by said Burditts and as "bounded on the north or northerly by land of D. J. and J. H. Griffith and F. W. Smith." This reference to land owned by the plaintiff obviously and necessarily means the land in question. When land conveyed is described as bounded by land of another, it must be taken that it is the true line that divides them, and not the line of occupation. 2 Dev. Deeds, § 1034; Cornell v. Jackson, 50 Mass. 150; Green v. Horn, 207 N.Y. 489, 101 N.E. 430; Cleaveland v. Flagg, 58 Mass. 76; Umbarger v. Chaboya, 49 Cal. 525. Moreover, at that time, the line between these lands was marked by a stone wall, and the plaintiff owned no other land in the vicinity. This wall has since fallen into disuse, but its location is easily traced, and the line it marked is not and never has been in dispute.

On July 13, 1896, the Smith & Brainerd Marble Company, by its warranty deed, conveyed the Burditt Farm to the Florentine Marble Company, a corporation. This deed, which covers other lands, describes this land as being theretofore owned by D. M. and L. F. Burditt, as being the same land conveyed to the grantor on May 16, 1890, by F. W. Smith, refers to that deed and its record, and recites that "Said premises are bounded on the north or northerly by lands of D. J. and J. H. Griffith and F. W. Smith."

On September 1, 1897, the Florentine Marble Company executed to Seneca Haselton a trust deed of the Burditt Farm and other properties. This deed describes the farm as formerly owned by the Burditts, as being the same land conveyed by F. W. Smith to the Smith & Brainerd Marble Company on May 16, 1890, and as being "bounded on the north or northerly by land of D. J. and J. H. Griffith and F. W. Smith."

On August 24, 1899, the Florentine Marble Company quitclaimed to Martha E. Worthy all the property conveyed to Seneca Haselton, trustee, by deed dated September 1, 1897. This deed did not describe the property covered by it, but referred to the Haselton deed and its record for a description.

On January 20, 1900, Martha E. Worthy quitclaimed to the Belden Falls Marble Company, a corporation, all the land she owned in the State of Vermont. In her deed, she describes one of the parcels conveyed as premises formerly owned by the Burditts, as being the same land conveyed by F. W. Smith to the Smith & Brainerd Marble Company on May 16, 1890, and as "bounded on the north or northerly by land of D. J. and J. H. Griffith and F. W. Smith."

On April 1, 1901, the Belden Falls Marble Company executed to Seneca Haselton a trust deed of its property, including the Burditt Farm, which it therein described as premises formerly owned by the Burditts, as being the same property conveyed by F. W. Smith to the Smith & Brainerd Marble Company on May 16, 1890, and as "bounded on the north or northerly by land of D. J. and J. H. Griffith and F. W. Smith."

On April 9, 1901, the Belden Falls Marble Company, by warranty deed, conveyed to the Rutland-Florence Marble Company, all the property, real and personal, covered by the above mentioned deed of April 1. This deed of April 9 does not enumerate or describe the property conveyed, but refers to the deed of April 1 for such description.

On April 20, 1911, the Rutland-Florence Marble Company, by warranty deed, conveyed to the defendant all its real estate, including the Burditt Farm and the land here in question--the latter being within the boundaries marked out in the deed. The defendant went into possession of the land in question, and has been in adverse possession thereof ever since.

The plaintiff has never conveyed away the land in dispute, holds the record title to it, and owns it unless he has lost his title by adverse possession.

This suit was brought March 5, 1915.

From the foregoing it appears that no single owner had had or can claim possession of the disputed land for the full term of fifteen years; that the defendant is the only person or corporation holding a deed covering this land; that each of the deeds of the Burditt Farm prior to the defendant's either expressly or by reference, is tied back to the original deed thereof given by F. W. Smith to the Smith & Brainerd Marble Company, wherein there is a deliberate and unmistakable admission that the plaintiff then owned the land in question. The result is that each deed in the defendant's chain of title, prior to its own, contains a solemn recognition of the plaintiff's title to the land involved in this suit.

What effect has this fact upon the defendant's claim of title by adverse possession? The plaintiff argues that it operates as an estoppel and precludes the defendant from asserting an adverse title. But this cannot be. Estoppels are and must be mutual, and they operate only upon and in favor of the parties and their privies. Wright v. Hazen, 24 Vt. 143; Capen's Admr. v. Sheldon, 78 Vt. 39, 61 A. 864; Pond v. Pond's Estate, 79 Vt. 352, 65 A. 97, 8 L.R.A. (N.S.) 212; Dunnett v. Shields & Conant, 97 Vt. 419, 123 A. 626. True, the grantee in the Smith deed was estopped by the recital therein, and this estoppel binds not only the Smith & Brainerd Marble Company, but also its grantee and the successive grantees clear along down to the end of time. It runs with the land, so to speak. That is to say, each and every one of these grantees is estopped from denying that the plaintiff owned the land in question on May 16, 1890, the date of the deed. This is so because there is privity of estate between such successive grantees. But the estoppel in the Smith deed carries no further than is stated. Its force is spent when it results as above. So with the next deed; the Florentine Marble Company and all claiming by, through or under it, are, by the recital in its deed, estopped from denying that the plaintiff owned the land in question on July 13, 1896; and this estoppel is available to the Smith & Brainerd Marble Company, the grantor in the deed, and all persons or corporations claiming by, through or under it. Persons so claiming are in privity with the Smith & Brainerd Company. But this deed does not operate to renew or extend the estoppel contained in the former one, but gives rise to a new estoppel available to different persons. This plaintiff is a stranger to the deed given by the Smith & Brainerd Marble Company, and therefore the estoppel therein or arising therefrom is not available to him. The privity involved therein looks forward and not backward. If we keep in mind the fact that estoppels are mutual, the correctness of this view is made obvious by a simple illustration: Suppose the deed from the Smith & Brainerd Marble Company had contained a recital that it or a third person owned the land in question, would the plaintiff be estopped from disputing this assertion? Certainly not. Why? Because he had no relation to that deed, was a stranger to it; and one who is not estopped by a deed can have no benefit therefrom by way of estoppel.

While the recitals in the deeds subsequent to his own cannot be availed of by the plaintiff as estoppels, they are solemn admissions and are to be given effect as such. Alsup v Stewart, 194 Ill. 595, 62 N.E. 795, 88 Am. St. Rep. 169. An estoppel is something more than an admission, and in effect gives rise to...

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1 books & journal articles
  • A Primer on Adverse Possession
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 66, 1991
    • Invalid date
    ...115, 119, 74 S.E.2d 235, 238 (1953); Tindle v. Linville, 5512 P.2d 176, 179 (Okla. 1973); Smith v. Vermont Marble Co., 99 Vt. 384, 393, 394,133 A. 355, 358 (1926 . 62. See Chicago & Alton R.R. Co. v. Keegan, 185 M. 70,84,56 N.E. 1088,1093 (1900); Smith v. Vermont Marble Co., 99 Vt. 384, 394......

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