Sowles v. Carr

• Decision Date: 31 January 1897
• Citation: 69 Vt. 414,38 A. 77
• Parties: SOWLES v. CARR.
• Court: Vermont Supreme Court

38 A. 77

69 Vt. 414

SOWLES

v. CARR.

Supreme Court of Vermont. Franklin.

Jan. Term, 1897.

Exceptions from Franklin county court; Munson, Judge.

Ejectment by Susan B. Sowles against Anthony Carr to recover the possession and rent of premises leased to defendant. Plea, not guilty and disclaimer. Trial by jury at the September term, 1895. There were verdict and judgment for defendant, and plaintiff excepts. Reversed.

E. A. Sowles, for plaintiff.

C. G. Austin, for defendant.

ROWELL, J. The plaintiff could not recover without showing that the defendant was in possession when suit was brought, which was in June, 1894. It appeared that on February 1, 1893, the defendant took a perpetual lease of the demanded premises, and then went into possession thereunder, and remained in possession and actual occupancy until the fall of 1893; but he claimed, and the testimony on his part tended to show, that, between that time and the commencement of the suit, he surrendered possession to the plaintiff, with her consent, and that she accepted and received possession at his hands, which she denied. The court correctly charged that the defendant could not rid himself of possession by abandoning the premises without acceptance of possession by the plaintiff, and that the burden was on the plaintiff to show that the defendant was in possession when the suit was brought; but it erroneously charged that this covered the point that there had been no surrender of possession, and that the burden was on the plaintiff to show that there had not been, for it contravened the rule in respect of the presumption of the continuance of existing conditions. Mr. Wharton says that, when a party establishes a judicial relation not in itself so limited in time as to have terminated at the period of litigation, it is not necessary for him to prove the continuance of the relation, but that the burden is on the other party to prove that it has terminated. 2 Whart. Ev. § 1284. There are many cases illustrative of this rule. Thus, I prove that a debt was due to me a year ago. The burden is on the debtor to show that it is paid or otherwise discharged. Farr v. Payne, 40 Vt. 615. Where the defendants relied on the statute of limitations, the plaintiff proved that they resided out of the state when the cause of action accrued. Held, that it must be presumed that they continued thus to reside, and that the burden was on them to show that they did not. Rixford v. Miller, 49 Vt. 319. The fact that a man was a professional gambler 20 months ago is presumptive evidence that he is such now. McMahon v. Harrison, 6 N. Y. 443. So, when possession is admitted or proved, whether of real or personal property, we may infer as a presumption of fact, for the purpose of determining where the burden of proof lies, that the possession is continuous. 2...