Toussaint v. Stone

• Decision Date: 02 January 1951
• Docket Number: No. 1182,1182
• Citation: 116 Vt. 425,77 A.2d 824
• Parties: TOUSSAINT et ux. v. STONE.
• Court: Vermont Supreme Court

Page 824

77 A.2d 824

116 Vt. 425

TOUSSAINT et ux. v. STONE.

No. 1182.

Supreme Court of Vermont.

Jan. 2, 1951.

Ralph Chapman, Brattleboro, for plaintiffs.

Douglas L. Tupper, Richard E. Gale, Brattleboro, for defendant.

Before SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

ADAMS, Justice.

This is an action of ejectment to recover the seisin and possession of land in Newfane. The declaration described the land by definite metes and bounds. The defendant pleaded the general issue and also that he had a vested right of possession and use of the premises by virtue of a recorded deed of the premsies to Dorr W. and Mary A. Hudson, predecessors in title to the plaintiffs, which right is both prior and paramount to the rights, if any, of the plaintiffs to the premises. The case was submitted to the court on an agreed statement of facts. Judgment thereon was for the defendant. The case is here on exceptions of the plaintiffs thereto.

The following facts appear from the agreed statement. The plaintiffs are the owners of a parcel of land which includes within its boundaries the premises herein demanded. Dana Dunton was the owner of the land in 1940 and while the owner he orally granted to the defendant and one Royal Bingham the right to use the demanded premises as long as they so desired and to build a cabin upon them. At the time of making this grant, Dunton said the defendant must pay him a dollar a year. Dunton never took the dollar, however, saying he wanted the defendant to understand business methods. Dunton conveyed a parcel of land, including the demanded premises, to Dorr W. & Mary A. Hudson by deed dated July 24, 1943. This deed contained a reservation in the following language:

'Also excepting and reserving to one Stone and Bingham the right to maintain a camp at the top of the hill leading to the upper part of the premises herein conveyed and to have use of the land from a point on the southerly side of the road and at a point on the stone wall of the west line of the land herein conveyed to the grantee, thence easterly along said road to a large poplar tree, thence southerly to the brook, thence westerly along said brook to a stone wall, thence along said stone wall in a northerly direction to the place of beginning.

'As to the last two reservations, if at any time in the future the parties give up said camps, they cannot sell the same but must remove the same.'

Then follow the deeds in the chain of title to the land showing that the plaintiffs acquired their title to the land including the demanded premises by deed from Viola W. & Thomas W. McGee dated November 27th, 1946. None of said deeds contained any reservations except the one to the McGees. That deed contained the following recital: 'Also subject to certain leases given to * * * one Stone and to others.' All of said deeds were recorded. The defendant went into possession of the premises in 1940, built a cabin thereon and is still in possession. In October, 1947, the plaintiff, Charles Toussaint, ordered the defendant off the demanded premises but he declined to leave. On or about October 24, 1947, the defendant tendered the plaintiffs one dollar as annual rent for the demanded premises. The plaintiffs refused the tender and returned the money. On or about December 12, 1947, the plaintiffs began an action of justice ejectment in the Brattleboro Municipal Court which was dismissed for lack of jurisdiction. The present action was begun in the Windham County Court on September 30, 1949.

We are here dealing with an agreed statement of facts and only necessary inferences arising therefrom can be drawn or considered. Grand Lodge of Vermont v. City of Burlington, 104 Vt. 515, 517, 162 A. 368.

The description of the demanded premises in the writ is the same as set forth in the above quoted so-called reservation in the deed from Dunton to the Hudsons. The defendant in his pleadings relies upon that deed and its record for his right of possession and use of the premises. That is the only right mentioned in his brief.

A reservation cannot create an estate or interest in a stranger to a deed but can only operate to the benefit of the grantor therein. An effective exception may be made a in favor of a third person not a party to the deed in recognition and confirmation of a right already existing in him. Nelson v. Bacon, 113 Vt. 161, 170, 32 A.2d 140 and cases cited; Goss v. Congdon, 114 Vt. 155, 156-157, 40 A.2d 429. The case of Keeler v. Wood, 30 Vt. 242, cited by the defendant does not help him. In that case the dower or life estate of the widow covered by the exception or reservation had already been set out and was in existence. In any event, that opinion must be read in connection with the holdings of this Court in the two cases just cited.

Here the defendant was not a party to the deed from Dunton to the Hudsons. He was a third party and a stranger to it. The language quoted from that deed was therefore, an exception. It recognized and confirmed a right that already existed in the defendant. This was created when Dunton, the then owner, granted orally to the defendant and one Bingham the right to use the demanded premises as long as they desired and to build a cabin on them and when he said that the defendant must pay him a dollar a year. It is necessary to determine the nature of that right.

It involved the use of a definite piece of land as well as the right to build a cabin thereon upon payment of a dollar a year. This was rent and the defendant so understood it for the agreed statement of facts states that he tendered the plaintiffs that sum as annual rent. It was more than a license for a license is the authority to do some act or acts upon the land of another and does not pass an interest in the land. Clark v. Glidden, 60 Vt. 702, 705, 15 A. 358; 51 C.J.S. Landlord and Tenant, § 157, p. 763; Smith v. Royal Ins. Co., 9 Cir., 111 F.2d 667, 130 A.L.R. 812.

The defendant went into possession of the land under an agreement with the owner and rent was to be paid. This created the relationship of landlord and tenant. Crawford v. Jerry, 111 Vt. 120, 11 A.2d 210; Smith v. Royal Ins. Co., supra. The agreement being oral, it created a tenancy at will only under our statute, V.S. 1947, § 2649; Amsden v. Atwood, 68 Vt. 322, 332, 35 A. 311; Abbott v. Lapoint, 82 Vt. 246, 249, 73 A. 166.

A tenancy at will may, as the definition implies, be terminated at any time by either the landlord or tenant. 51 C.J.S., Landlord and Tenant, § 167; 32 Am.Jur. § 67. It can be terminated by any act or declaration inconsistent with the voluntary relationship of landlord and tenant, as notice to quit, threat of legal means to recover possession, anything that amounts to demand of possession, the bringing of an action to recover possession which fails. Amsden v. Blaisdell, 60 Vt. 386, 390, 15 A. 332; Mayo, Adm'x v. Claflin, 93 Vt. 76, 79, 106 A. 653. Here the plaintiffs ordered the defendant off the premises, refused to take the rent and brought an action of justice ejectment which failed. Any one of these acts was sufficient to terminate the tenancy.

Being a tenant at will only the defendant, however, was entitled to a reasonable time after the termination of the tenancy in which to procure other accommodations and remove his property. Mayo, Adm'x v. Claflin, 93 Vt. 81, 106 A. 653 and cases cited. Here, as the plaintiffs say in their brief, that would be the time necessary to gather up his property, dismantle and remove his cabin and depart. This action was not brought until nearly two years...