Swerdferger v. Hopkins

• Decision Date: 22 December 1894
• Citation: 31 A. 153,67 Vt 136
• Parties: SWERDFERGER et ux. v. HOPKINS.
• Court: Vermont Supreme Court

31 A. 153

67 Vt 136

SWERDFERGER et ux.

v. HOPKINS.

Supreme Court of Vermont. Caledonia.

Dec. 22, 1894.

Exceptions from Caledonia countycourt; Munson, Judge.

Action of trespass quare clausum by Simeon Swerdferger and wife against Amos D. Hopkins.From a judgment for plaintiffs, defendant excepts.Reversed.

The plaintiffs were husband and wife.The deeds introduced by them showed the title in the wife.When the deed from her immediate grantor to the plaintiff wife was offered in evidence, the defendant objected to its admission on the ground of a variance, and excepted to the action of the court in admitting it At the close of the plaintiffs' testimony, the defendant moved the court to direct a verdict in his favor upon the ground of a variance between the proof and the declaration.The court overruled the motion, and the defendant excepted.There upon the plaintiffs asked leave to amend the declaration so as to show that the legal title stood in the plaintiff wife, and the court allowed this amendment, subject to the objection and exception of the defendant.At the close of the testimony, the defendant moved for a verdict, for the reason that the plaintiffs, being husband and wife, were improperly joined, which motion the court overruled, and the defendant excepted.

The plaintiffs and defendant were the owners of adjacent lots, and the dispute was as to the boundary line between these two lots, The plaintiffs claimed to own to a line which ran through a group of plum trees, and which was called upon the trial the "Plum-Tree Line," and their testimony tended to show that they and their grantor had occupied up to this line for more than 15 years, and had acquired title to the same by adverse possession, if it was not covered by the description in their deed.As bearing upon this question, one John Nichols, who was for two years the owner of the plaintiffs' premises, was allowed to testify that when he took the property, and during the time he occupied it, he understood his line to be as claimed by the plaintiffs upon the trial.To his testimony as to his understanding of the location of the line the defendant excepted.William Fort, a witness improved by the plaintiffs, was the husband of one Agnes Fuller, who had formerly held title to the plaintiffs' premises.Fort had occupied the premises with his wife, and he was allowed to testify, against the exception of the defendant, that upon one occasion while living there one Judevine, then the owner of the adjacent lot, came to him claiming a portion of the premises occupied by him; and that thereupon he said to said Judevine that he had bought up to the line as claimed by the plaintiffs, and should occupy to that line, and that if Judevine got any of the land it would be by a lawsuit, and that he never heard anything more from Judevine.One Curtis, a witness for the plaintiffs, testified that he occupied the place as a tenant of Perley, the then owner, from January, 1874, until the fall of 1884, and that during that time he occupied up to the plum-tree line.He was further allowed to testify, against the exception of the defendant, that one day in 1876 or 1877 a hired man of Judevine's, who then owned the adjacent lot, began to dig post holes for the purpose of constructing a fence upon the line as claimed by the plaintiffs; that Perley objected to the construction of the fence at that point; that, after some discussion between Terley and Judevine in reference to that subject, they went to the town clerk's office, and drew up and signed an agreement fixing the location of the line in dispute, and that this agreement was left with the town clerk for safe-keeping.The plaintiffs attempted to show the loss of this paper, and to prove the contents thereof, by secondary evidence, but the court excluded the testimony.It appeared in the cross-examination of this witness that, after the writing had been drawn, Perley instructed him to bury a piece of wood in one of the old post holes upon the line claimed by the plaintiffs; and upon re-examination the witness was allowed to state that at the time Perley had stated to him that he wanted the piece of wood buried there to fix the location which they had then agreed upon, and that Perley further said at that time that he had occupied in the past up to the plum-tree line.One Taylor, a witness for the defendant, testified that he had surveyed the lot of the defendant and plaintiffs, and had made a plan, which was put in by the defendant; that upon one occasion, in talking with Perley about the boundaries of the lot, Perley had pointed out to him a post hole in the line claimed by the plaintiffs.Upon cross-examination the witness was allowed to state what Perley had said about the location of the line upon this occasion.Pike, a witness for the defendant, testified that he occupied the defendant's premises for nearly one year in 1876, and again from 1885 to 1889.The defendant then offered to show by this witness that be bad a talk with Judevine, the owner of the other parcel, and that Judevine pointed out the line of the land in dispute, and told him where the line was, and that the line then pointed out was where the defendant now claimed it This evidence was excluded by the court, under the exception of the defendant Johnson, a witness for the defendant, testified that In 1881, while working for Judevine, he piled some lumber belonging to Judevine on the lot in dispute.Upon cross-examination, the plaintiffs were allowed to show, subject to the exception of the defendant, that in consequence of piling the lumber there Perley and Judevine, the then owners of the two lots, had some discussion in reference to the line, and that they then referred to a writing which had been drawn up between them for the purpose of determining where the line was.In the opening of their case the plaintiffs put in proofs as to surveys, distances, and places where they claimed all the trespasses were committed, and the kind and character of those trespasses, and their occupation, etc.In rebuttal the plaintiffs were allowed by the court, not in the exercise of its discretion, but as matter of strict legal right, to give in evidence measurements made by the witnesses of the plaintiffs, after the defendant had rested its case in reference to the plum-tree line, and to show that certain trespasser were north of an old gateway to which the defendant had claimed.

In reference to the exceptions of the defendant to the charge of the court, the bill of exceptions was as follows: "The defendant seasonably presented written requests to charge, which are referred to.The entire charge is referred to.The defendant excepted to the refusal of the court to charge in accordance with said requests, and to the charge as given upon the points covered by the requests.Defendant also excepted to the charge as to what the existence of the fences owned indicated, if found to exist; to the charge as to the effect of the fences upon the possession of the plaintiffs, as to its requiring fifteen years' adverse possession on the part of the defendant to secure title, if the plaintiffs had acquired one; to so much of the charge as related to * * *; to the charge that, as against any proper title shown by the defendant, plaintiffs need do no more than show a prior possession."Upon the argument of the case in supreme court, no copy of the requests to charge, nor of the charge as given, was furnished the court.After verdict the defendant moved in arrest of judgment, for that the description in the plaintiffs' declaration was insufficient The court overruled the motion, and the defendant excepted.The declaration described the locus as part of a given lot in a certain range, and referred to the record of the deed to the plaintiffs.

J. P. Lamson, for plaintiffs.

Bates & May, for defendant.

TAFT, J. I.The premises are described in the declaration as the lot deeded to the plaintiffs.The plaintiffs offered in evidence a deed from one Perley to the feme plaintiff.Objection being made upon the ground of variance between the contract described in the declaration and the one offered in evidence, the court granted leave to amend the declaration so as to describe the lot as the one deeded to the feme plaintiff.This amendment did not change the parties nor the nature or cause of action.The court, therefore, had the legal right to permit the amendment to be made, and, if the court had power to allow the amendment its action was discretionary, and not revisable.There was no error in granting the motion to amend.Bowman v. Stowell, 21 Vt 309;Bates v. Cilley, 47 Vt. 1.

II.Can the husband and wife join as plaintiffs?Such was the law prior to No. 140, Acts...