St. Johnsbury & L.C.R. Co. v. Willard
| Citation | 17 A. 38,61 Vt. 134 |
| Parties | ST. JOHNSBURY & LAKE CHAMPLAIN RAILROAD COMPANY v. ANDREW J. WILLARD |
| Decision Date | 01 February 1889 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, OCTOBER, 1888.
Judgment reversed, and judgment for the defendant for $ 125 and interest thereon from July 1, 1880 the time when the petitioner took possession.
A J. Willard, pro se.
In 1869 Trudell mortgages to Brown. In 1871, the mortgage being overdue, but the mortgagor being still in possession, The Essex County Railroad Company, by virtue of some arrangement with the mortgagor, the terms of which do not appear, and with the knowledge of the mortgagee, but, as far as appears without any agreement with him, enters upon the land in question, and surveys, locates, and constructs its railroad across the same, and puts it in operation. In 1864 Hovey is in adverse possession of 3 1/4 acres of the 5 1/4 acres in question, parcel of the mortgaged premises, and continues in such possession until he thereby acquires title thereto, which title he conveys to The Essex County Railroad Company; all which is after the execution of the mortgage, and before The St. Johnsbury & Lake Champlain Company succeeds to the rights, title, and privileges of The Essex County Company, on July 1st, 1880, and goes into the possession and operation of the road. In 1883, the defendant becomes the owner of the mortgage, and forecloses it against the mortgagor and The St. Johnsbury & Lake Champlain Company, and obtains a final decree in December, 1884, and is put into possession in February, 1886, by virtue of a writ of possession, whereupon The St. Johnsbury & Lake Champlain Company brings this petition to condemn the land.
No question is made in argument as to the validity of the original mortgage in respect to the 3 1/4 acres, on the ground that at the time of the execution of the mortgage they were in the adverse possession of Hovey, but the question of the defendant's right to damages therefor is left to stand upon the effect of the decree irrespective of that consideration, and the question is, Does that decree, excluding that consideration, estop the petitioner from now setting up the title acquired from Hovey? The petitioner does not really claim that it does not. It certainly does if the validity of that title could have been litigated in the foreclosure suit. And it could have been, for as the original validity of the mortgage as to this land is not questioned, the case stands in this behalf, and perhaps would stand any way, like the ordinary case of a title acquired after the execution of a mortgage that extinguishes the mortgage lien, and such title may be the subject of adjudication in a suit to foreclose. Wilson v. Jamison, 36 Minn. 59, 29 N.W. 887; s. c. 1 Am. St. Rep. 635, with note.
The remaining question relates to the amount of damages.
The defendant claims that inasmuch as his decree became absolute it was effective to give him the title to the corpus of the railroad itself, and that in this proceeding he is entitled to its value as...
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