Price v. Rowell, No. 1308

Docket NºNo. 1308
Citation121 Vt. 393, 159 A.2d 622
Case DateMarch 02, 1960
CourtUnited States State Supreme Court of Vermont

Page 622

159 A.2d 622
121 Vt. 393
George H. PRICE, Elsie K. Price,
v.
Leslie E. ROWELL, Helen L. Rowell.
No. 1308.
Supreme Court of Vermont.
March 2, 1960.

Page 624

[121 Vt. 394] Norbert J. Towne, Northfield, for plaintiffs.

Franklin S. Billings, Jr., Woodstock, for defendants.

Before [121 Vt. 393] HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

[121 Vt. 394] HOLDEN, Justice.

The plaintiffs have resorted to the court of chancery and the declaratory judgment act to settle their title and protect their rights in the Mount Hunger School property, in the town of Barnard. It appears from the complaint that the school house was constructed sometime in 1868, on lands that were a part of Justin Lillie's farm. No deed or other instrument of conveyance was ever given by Lillie. The construction was done by virtue of an oral agreement between the plaintiff's predecessor, Lillie, and the School District Committee of District No. 8 to the effect that if the property should cease to be used as a public school, it would return to the possession of Lillie, his heirs and assigns. Use of the property as a public school continued to 1939.

The complaint states that the farm upon which the school was built was subsequently sold by the estate of Justin Lillie according to the same description given when Lillie acquired the farm. No exception of the school property was mentioned in this, or any of the subsequent deeds. It is further alleged that the plaintiffs acquired title to the Mt. Hunger School property through an unbroken chain of conveyances from Justin Lillie. Their immediate grantors, H. Edward and Alice Stimets, conveyed the farm, by warranty deed dated September 28, 1945, recorded in Book 29, page 512 of the Barnard Land Records. The plaintiffs claim to have enjoyed full possession of the Mt. Hunger School during the period from 1945 until September 7, 1957.

Despite a written protest from the plaintiffs, the Selectmen of Barnard undertook to convey the school property to the defendants by quitclaim deed of September 7, 1957. It is alleged that the defendants, on that date, broke into the school and have retained possession against the plaintiffs ever since.

[121 Vt. 395] The plaintiffs assert they have no complete and adequate legal remedy. They seek to avoid multiplicity of actions and petition for a declaration of their rights in the property and injunctive relief against the continuing and repeated trespass of the defendants.

The defendants moved to dismiss the complaint on the contention that the complaint does not state a cause of action in equity and that equitable relief is not justified on the pleadings. After hearings on the motion, the court of chancery for Windsor County granted the defendants' motion to dismiss and passed the cause to this Court for review before final decree.

The motion to dismiss certified to us, is in substance and effect the equivalent of a demurrer under the Practice Act. Kaeser v. Town of Starksboro, 116 Vt. 389, 391, 77 A.2d 831. Its function and purpose is to test the sufficiency of the complaint, and it admits the truth of facts well pleaded. Theberge v. Canadian Pacific Railway Co., 119 Vt. 193, 197, 122 A.2d 848; Gignac v. King, 118 Vt. 413, 416, 111 A.2d 42; Connecticut General Life Insurance Co. v. Levin, 115 Vt. 170, 171, 55 A.2d 127.

In support of the ruling appealed from, the defendants argue the inadequacy of the pleading as to the description of the land. The property is described as the 'farm formerly owned by Justin Lillie.' The description of land as being 'our home farm' was held adequate to meet the challenge of a demurrer in an action in equity to foreclose a mortgage in Howe's Executors v. Towner, 55 Vt. 315, 316. The Court in that case found the description sufficiently

Page 625

definite. It reasoned that the boundaries of farms are generally well marked and defined, so that one acquainted with the farm can readily point out and locate its limits.

The defendants also criticize the averment that the plaintiffs have an 'unbroken chain of title to said farm' as the statement of a conclusion of law. The allegation is a mixture of law and fact. But the complaint goes on to make plain the source of the plaintiff's title and refers to conveyances [121 Vt. 396] by which it was derived. Since the pleading identifies the property and the source of the plaintiffs' title to it, it is sufficiently clear to acquaint the defendants with the nature of the claim and the proof they must meet on the trial of the main issues.

In any event, it readily appears from the proceedings below, that the chancellor did not certify this cause to review technical points of pleading. Such is not the purpose of 12 V.S.A. § 2428...

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16 practice notes
  • Knight v. Hescock, 157-78
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 5, 1979
    ...A.2d 737, 740 (1959). A permissive use no matter how long continued will never ripen into title by adverse possession. Price v. Rowell, 121 Vt. 393, 398, 159 A.2d 622, 626 (1960). It is not necessary, however, for the adverse claimant to voice a claim to the property if his use is such as t......
  • Shaw v. E. I. DuPont De Nemours & Co., s. 66
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 6, 1964
    ...At that time court and counsel correctly treated the defendant's motion to dismiss as in the nature of a demurrer. Price v. Rowell, 121 Vt. 393, 395, 159 A.2d 622; Kaeser v. Town of Starksboro, 116 Vt. 389, 391, 77 A.2d 831. On the motion presented, only the substance of the complaint can b......
  • Bell v. Associated Independents, Inc., 2663
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 1962
    ...a complaint which is sufficient to invoke the Court's jurisdiction, Morecroft v. Taylor, 225 App.Div. 562, 234 N.Y.S. 2; Price v. Rowell, 121 Vt. 393, 159 A.2d 622 (Vt.); Wooldridge Mfg. Co. v. R. G. La Tourneau, Inc., D.C., 79 F.Supp. 908, but is to be exercised when the evidence Page 909 ......
  • C.V. Landfill, Inc. v. Environmental Bd., 91-012
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 8, 1992
    ...614, 625, 596 A.2d 905, 912 (1991). Because the purpose of the DJA is to stabilize and quiet relations between parties, Price v. Rowell, 121 Vt. 393, 399, 159 A.2d 622, 626 (1960), the court's actions were justified. As it is a remedial statute, we will construe the DJA liberally to effectu......
  • Request a trial to view additional results
16 cases
  • Knight v. Hescock, No. 157-78
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 5, 1979
    ...A.2d 737, 740 (1959). A permissive use no matter how long continued will never ripen into title by adverse possession. Price v. Rowell, 121 Vt. 393, 398, 159 A.2d 622, 626 (1960). It is not necessary, however, for the adverse claimant to voice a claim to the property if his use is such as t......
  • Shaw v. E. I. DuPont De Nemours & Co., Nos. 66
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 6, 1964
    ...At that time court and counsel correctly treated the defendant's motion to dismiss as in the nature of a demurrer. Price v. Rowell, 121 Vt. 393, 395, 159 A.2d 622; Kaeser v. Town of Starksboro, 116 Vt. 389, 391, 77 A.2d 831. On the motion presented, only the substance of the complaint can b......
  • Bell v. Associated Independents, Inc., No. 2663
    • United States
    • Court of Appeal of Florida (US)
    • August 17, 1962
    ...a complaint which is sufficient to invoke the Court's jurisdiction, Morecroft v. Taylor, 225 App.Div. 562, 234 N.Y.S. 2; Price v. Rowell, 121 Vt. 393, 159 A.2d 622 (Vt.); Wooldridge Mfg. Co. v. R. G. La Tourneau, Inc., D.C., 79 F.Supp. 908, but is to be exercised when the evidence Page 909 ......
  • Wilbur v. University of Vt., No. 139
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 10, 1970
    ...of the lower court, in refusing to dismiss, the facts alleged and exhibited with the complaint are taken to be true. Price v. Rowell, 121 Vt. 393, 395, 159 A.2d 622. In the same way, the answers to the questions certified are to be given in the context of the facts as stated in the The subj......
  • Request a trial to view additional results

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