Smith v. Fitzgerald

• Decision Date: 03 June 1887
• Citation: Smith v. Fitzgerald, 59 Vt. 451, 9 A. 604 (Vt. 1887)
• Court: Vermont Supreme Court
• Parties: SMITH v. FITZGERALD.

9 A. 604

59 Vt. 451

SMITH

v. FITZGERALD.¹

Supreme Court of Vermont. Franklin.

June 3, 1887.

Exceptions from county court, Franklin county.

Action of trespass quare clausum fregit. Heard upon referee's report, and exceptions thereto, by the county court, Franklin county, September term, 1886; Royce, C. J., presiding. Judgment on the report for the plaintiff. Exceptions by defendant. The facts sufficiently appear in the opinion.

Charles Soule and Wilson & Hall, for plaintiff.

The ad damnum, being more than $20, gave the county court original jurisdiction; and the fact being found that plaintiff's damage was only $10 does not affect the question. Doubleday v. Marstin, 27 Vt. 488; Montgomery v. Edwards, 45 Vt. 75; Learned v. Bellows, 8 Vt. 79; Ladd v. Hill, 4 Vt. 164. The injury complained of was to the plaintiff's possession, and it was unnecessary to join the wife, although the title to the land was in her. 1 Chit. Pl. 74; Bowen v. Amsden, 47 Vt. 569; Holton v. Whitney, 28 Vt. 448; Allen v. Kingsbury, 16 Pick. 240; Clapp v. Stoughton, 10 Pick. 463; Com. Dig. tit. "Baron & Femme," W, X. No rule of law is better settled than that parol evidence is not admissible to show the intention of the parties to a deed, unless there is an ambiguity upon its face. Pingry v. Watkins, 17 Vt. 379; Morse v. Low, 44 Vt. 561; Abbott v. Choate, 47 Vt. 53; Vermont Cent. R. Co. v. Hills, 23 Vt. 681.

Ballard & Burleson, for defendant.

The referee finds that the plaintiff has no right in or title to the real estate save such as by operation of law he would acquire in and to the real estate of his wife. The separate property of the wife was the meritorious cause of action, and in such case the wife must be joined. Hackett v. Hewitt, 57 Vt. 442. If the injury complained of affects the inheritance, the action must be brought byhusband and wife jointly. 1 Washb. Real Prop. 279-312; 2 Kent, Comm. 131; Babb v. Perley, 1 Greenl. 6; Weller v. Baker, 2 "Wils. 423; Kelley, Cont. 82. In all cases where the right of action would survive to the wife, the husband and wife must join in any action brought therefor. 1 Pars. Cont. 286; Morse v. Earl, 13 Wend. 271; Milner v. Milnes, 3 Term R. 631; Rumsey v. George, 1 Maule & S. 176; Hoy v. Rogers, 4 T. B. Mon. 225; 1 Chit. Pl. 74; Clapp v. Stoughton, 10 Pick. 469.

WALKER, J. This is an action quare clausum fregit for cutting trees on land of which the plaintiff and his wife, Laura, were in possession in right of the wife, who held the same under a warranty deed from her father, and over which the plaintiff exercised such control and management as a husband may, in the law, exercise over the wife's real estate, and had no right or estate in the premises except such as a husband acquires by marriage in the real estate of his wife. The wife was not joined as a party plaintiff in the writ. It is inferable from the referee's report that the principal question before him was whether the locus in quo was within the limits of the plaintiff's wife's lot. The referee finds that the land is of small value except for wood and timber, and that the trees cut and taken away by the defendant stood upon the land of the plaintiff's wife, and were of the value of $10. This was the extent of the plaintiff's claim for actual damages; but he claimed to recover exemplary damages in addition thereto, which the referee disallowed, for the reason that the defendant cut the trees to assert his right, as he believed, to the locus.

The defendant in this court relies upon three exceptions which he filed to the referee's report in the court below, to-wit: (1) That the county court had no original jurisdiction of the action; (2) that the judgment should be rendered for the defendant upon the report, because of the non-joinder of the plaintiff's wife as a party plaintiff; (3) that the referee committed error in excluding the testimony of Homer E. Hubbell.

1. The action was brought originally to the county court, and the declaration charges the defendant with entering upon the plaintiff's land with force and arms, and cutting and carrying away certain trees standing and growing thereon, and with other wrongs, and concludes, "to the damage of the plaintiff, three hundred dollars." The county court had original jurisdiction of the action unless it is within the jurisdiction of a justice of the peace. A justice of the peace has jurisdiction of actions of trespass on the freehold when the sum in demand does not exceed $20. R. L. § 821. This is the limit of the jurisdiction of a justice of the peace in this class of actions; and it is immaterial whether the title to the land is in dispute or not. To give the county court original jurisdiction the sum in demand must exceed $20. So the determining fact is the sum in demand in the action. What constitutes the sum in demand in an action of trespass on the freehold is not an open question in this state. This was settled by the opinion of the court in Montgomery v. Edwards, 45 Vt. 75, which was an action quare clausum fregit brought originally to the county court. The declaration charged the defendant with cutting down and carrying away trees standing and growing on the plaintiff's land of the value of fifteen dollars, and concluded, "to the damage of the plaintiff, fifteen dollars." The plaintiff claimed to recover treble damages, but did not declare upon the statute giving treble damages, and therefore could not recover such damages in the action. The plaintiff's testimony tended to show the value of the trees cut to be from six to eight dollars; the jury found their value to be five dollars and twenty-eight cents. The defendant in that action claimed that upon the proof the county court had not original jurisdiction, and moved to dismiss the action. The county court overruled the motion, and the defendant excepted. The supreme court, in passing upon the question, held that the action must be regarded as an ordinary action of trespass on the freehold, and that the ad damnum in the writ was the sum in demand, and that, as the ad damnum exceeded $20, the county court had original jurisdiction of the action. Judge Peck, in the opinion of the court, says: "In actions of trespass on the freehold, and actions of assault and battery and the like, the ad damnum in the writ is the sum in demand determining the jurisdiction." The learned judge also says, in substance, that, if the rule of good faith be applied, as it is in some other actions, there was no error in the decision of the county court, as the court may have found that the plaintiff in good faith supposed he could recover more than $20, in view of the fact that he claimed treble damages. The case cited and the case at bar are very similar. The ad damnum in each case exceeds $20. In neither was the value of the trees claimed to be over $10. In one, the plaintiff claimed to recover treble damages, and failed in that claim; in the other, the plaintiff claimed to recover exemplary damages, and failed in that respect; and the good faith of the plaintiffs in their respective claims was not questioned in either case.

Upon the authority of the case cited, it must be held that the county court had original jurisdiction of the case at bar.

2. The next question to be considered is whether an action can be maintained in the name of the husband alone against a person for cutting trees upon the wife's land during the coverture. As we have no statute law upon this subject, the question must necessarily be determined upon the principles and authority of the common law. The common-law rule as to the joinder of husband and wife in actions for damages to the real property of the latter during coverture is said by some writers to be not quite clear. The rule, however, seems to be quite uniform in the elementary books and dicisions of the courts.

In Chitty's Pleadings (volume 1, 6th Amer. Ed. p. 85) the law is stated as follows: "In real actions for the recovery of the land of the wife, and in a writ of waste thereto, the husband and wife must join. But, when the action is merely for the recovery of damages to the land or other real property of the wife during the coverture, * * * the husband may sue alone, or the wife may be joined, her interest in the land being stated in the declaration." In Waterman on Trespass (volume 2, § 937) the rule is stated as follows: "At common law, where the action is merely for the recovery of damages done to the real estate of the wife during coverture, the husband may sue alone or his wife may be joined." In Dicey on Parties to Actions, 412, the rule is laid down as follows: "A husband may sue, either alone or jointly with his wife, for all injuries done during coverture to real property, of which the husband and wife are seized, or to which they are entitled in right of the wife." The same doctrine is asserted in Hilliard on Torts, (volume 2, p. 502.) It is there stated that an action for trepass for cutting trees on land held by husband and wife in right of the wife may be brought by the husband alone, or by the husband and wife jointly, at his election.

The rule thus laid down seems to have been followed in the dicisions of the courts where the common law governs, and is supported by an unbroken line of authority. 2 Saund. Pl. & Ev. 81; 1 Rolle, Abr. 348; Bright v. Addy, 2 Vent. 195; Com. Dig. tit. "Baron & Eemme," V, W, X; 2 Bac. Abr. tit. "Baron & Eemme," K; Marshal v. Doyle, Cro. Car. 473; Cabell v. Vaughan, 1...