Langdon v. Templeton
| Decision Date | 16 March 1894 |
| Citation | 28 A. 866,66 Vt. 173 |
| Parties | JAMES R. LANGDON v. HORATIO TEMPLETON |
| Court | Vermont Supreme Court |
Bill in chancery. Heard upon pleadings and a master's report at the September term, Washington county, 1892. Ross chancellor, decreed for the orator. The defendants appeal.
Decree reversed and cause remanded, with directions to enter a decree for the orator, making the injunction perpetual as to the ten acres and as to the suits at law as far as they relate thereto. Let the question of costs below be there determined.
Dillingham Huse & Howland for the orator.
OPINIONWhen this case was here on demurrer to the bill, 61 Vt 119, it was held that in the circumstances alleged, the bill was maintainable as a bill of peace, for that the tax sale of the lot in 1824, as the proceedings therein were set out in the bill, conferred an equitable title on the purchasers thereat, under whom the orator claims, and gave them the right to call in the legal title; and for that the orator, being in possession, could bring no action at law against the defendant who, it did not appear, had disturbed his possession, but who, it did appear, was making claim, and had brought suits against the orator's tenant, but not such as would necessarily settle whether the defendant had title or not. But now the case is materially changed from that made by the bill, for by the finding of the masters it appears that said tax sale was void, and therefore it did not confer even an equitable title on the purchasers thereat, much less did it give them a right to call in the legal title, for no legal title was thereby ever inchoated. Nor did it give color of title. That would have to come from the collector's deed, which was never given. Wing v. Hall & Darling,47 Vt. 182, 216.
The orator and those under whom he claims paid taxes on the lot from 1824 to 1886, and claimed to own it. But the payment of taxes is not an act of possession, and does not tend to show a possessory title. Reed v. Field,15 Vt. 672; Tillotson v. Prichard, 60 Vt. 94. Neither the orator nor those under whom he claims ever had color of title to the lot. The orator does not claim title by adverse possession; and as the tax sale was not effective to confer title, which is the only source from which he ever claimed to have derived title, he is left to stand on possessory title only, if any he has.
Now concerning possession, the only allegations of the bill are, that said lot is timber land and has never been enclosed, and that the orator cut timber on it long before the defendant laid claim to it, which cutting was the only use the orator had any occasion to make of it; and that in 1885, one Clogston went into possession of it, and has since remained in possession, cutting timber therefrom and manufacturing it into lumber, under a contract with the orator by which he is bound to maintain for Clogston the right thus to possess and to cut timber.
As to the allegation of cutting before the defendant laid claim the finding is that neither the orator nor those under whom he claims ever did anything on the lot till late in the fall of 1872, when the orator, acting under the advice of counsel, who told him that his title was bad and to go into possession, entered on about ten acres of the southeast corner of the lot and that fall and winter cut thereon from thirty to fifty thousand feet of lumber. As to the allegation of Clogston's possession the finding is that on December 21, 1885, the defendant, knowing of the orator's claimed rights to the lot and what he had done upon and concerning it, finding the lot vacant and no one in possession, entered thereon under his deed of Dec. 17, 1885, from Kellogg, which had been recorded, and continued there, cutting wood and timber, till the 8th day of January, 1886, when the orator, knowing from the record of the Kellogg deed, entered upon the lot in the night time, through Clogston, and drew away and converted to his own use the wood and timber there remaining that the defendant had cut; and further, that in January, 1887, the defendant, with his men, again began to cut wood and timber on the lot, and that thereupon Clogston, acting for and under the direction of the orator, who knew that the defendant was in peaceable possession under his deed from Kellogg, raised a force of men, and therewith went to the lot, whereupon the defendant and his men, to prevent violence, left the lot, and Clogston and his force entered in behalf of the orator, who has ever since retained possession by force, and cut off and converted to his own use more than a million feet of timber. This is all the possession the orator is shown to have ever had.
It not appearing that the lot had definite boundaries marked upon the land, and the orator having neither title nor color of title thereto, his actual possession of the ten acres thereof, though taken claiming the whole lot, gave him no constructive possession of the residue. So prior to the defendant's entry on December 21, 1885, the orator never had possession, actual or constructive, of any part of the lot except said ten acres. He cannot, therefore on the ground of possessory...
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