E. W. Blondin v. E. D. Brooks
| Decision Date | 23 May 1910 |
| Citation | 76 A. 184,83 Vt. 472 |
| Parties | E. W. BLONDIN v. E. D. BROOKS ET AL |
| Court | Vermont Supreme Court |
November Term, 1909.
APPEAL IN CHANCERY, Franklin County. Heard at Chambers, December 17 1907, on the pleadings, master's report, and orator's motion to recommit the report. Motion denied, and decree that the bill be dismissed with costs. The orator appealed. The opinion states the case.
Decree dismissing the bill with costs affirmed as to all the defendants but Brooks, as to whom it is reversed pro forma, as there was no error in dismissing it as to him, and cause remanded, with directions to bring said renunciation into the case, and when it is brought in, to decree for the orator against Brooks according to the prayer of the bill with or without costs below as may be and has been there determined.
H P. Dee and M. H. Alexander for the orator.
Present: ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
This is a bill in chancery to remove a cloud, and to quiet title to certain land at St. Albans Bay, claimed to have been a part of the James M. Haynes farm there situate of which the orator's grantor, Mary E. Chennette, is the owner, and has been ever since the death of Mr. Haynes in 1894, under whose will she took title. The orator claims the land under a quitclaim deed from Mrs. Chennette to him, dated April 15, 1903. The defendants Brooks and Younger claim title under a quitclaim deed from A. O. Brainerd to them, dated November 18, 1899. As to the other defendants it is sufficiently accurate for present purposes to say that they claim under Brooks and Younger.
Whether Mrs. Chennette had title or not, depends upon whether Haynes had title; and whether he had it or not, depends upon whether he acquired it by virtue of a quitclaim deed from Ralph Laselle to him, dated May 27, 1869, or by adverse possession, or both.
But the master says that he is unable to find whether Haynes acquired title under the Laselle deed or not, "as none of the deeds or records introduced in the case describe or locate the land in question."
It must be said, therefore, that it does not appear that Haynes acquired title under the Laselle deed. And there is another reason why that must be said, for it does not appear that Laselle had any interest by possession nor otherwise in the land covered by his deed, wherever it was, and therefore it is no evidence of title in Haynes. Potter v. Washburn, 13 Vt. 558, 37 Am. Dec. 615; Bank of Middlebury v. Rutland, 33 Vt. 414; Wilder v. Davenport, 58 Vt. 642, 5 A. 753. And further, when the thing itself is not sold, but only, as here, the right, title, and interest therein, the law implies ownership neither in land nor in chattels. Baker v. Sherman, 73 Vt. 26, 50 A. 633; Cummings v. Dearborn, 56 Vt. 441.
And Brainerd's deed to Brooks and Younger stands the same in this respect as Laselle's deed to Haynes, and so is no evidence of title in Brooks and Younger, and it does not appear that they otherwise have title.
But it is claimed that Haynes acquired title to the land in question by adverse possession. That, however, does not appear, for as to the part of it that lies south of Dock Street and west of the fence that he built in 1875, and maintained till his death, and on which, it would seem, most if not all of the cottages stand--the master expressly says he is unable to find that he acquired title to it by adverse possession; and as to the part of it that lies south and east of said fence it can not be said that he thus acquired title to it, for it does not appear that he had color of title to it by virtue of the Laselle deed, as the master is unable to locate the land therein described; and though a fence so maintained as to indicate that the occupant is claiming to it, has the same operation in extending the effects of acts of possession that color of title has, and gives constructive possession in the same way, yet whether a fence in the concrete case does in fact indicate such claim, or whether it was maintained merely as a convenient mode of inclosing other lands, is a question of fact for the trier, and here the question is not found either way by the master. So it can not be said that Haynes's occupancy, whatever it was, which does not appear, was under a claim of right, which is essential to the acquisition of title by adverse possession. Soule v. Barlow, 48 Vt. 132; s. c. 49 Vt. 329; Lathrop v. Levarn, 83 Vt. 1, 74 A. 331.
But it is claimed that though the master's findings do not show title in Haynes and so not in Mrs. Chennette, yet, that title is shown in both of them as against the defendants, by the judgment in the case of the orator against the defendant Brooks, tried and determined at the September term, 1902 of Franklin county court. We have to learn what was in issue in that case mainly from the charge to the jury, which is before us, for the master finds but little about it, though what he does find accords with what the charge shows. But we learn from the briefs of counsel that the action was trespass for entering upon the land in question. and tearing down and removing, or attempting to tear down and remove, a boathouse thereon that the orator had bought. From the charge we learn that the defendant did not deny the act complained of, but justified it on the ground that he was the owner of the land. We also learn that the plaintiff claimed in the right of Mrs. Chennette, and that the defendant claimed under said deed from Brainerd to him and Younger. So the question was, as the court told the jury, whether the land there in dispute belonged to Mrs. Chennette, the plaintiff's lessor, or to the defendant. The court further told the jury that there was no question but that Mrs. Chennette owned the Haynes farm, but that the question was whether the piece in dispute belonged to that farm. Each party introduced deeds in support of his claim, but the court told the jury that neither showed perfect record title, and that neither could stand upon his title independent of possession; but that each had introduced deeds that gave him color of title, and afforded a basis for possession. So the case was submitted to the jury on the issue of title by adverse possession, and on that question the right of recovery was made to depend though the court told the jury that if the plaintiff was entitled to recover, he was entitled to recover not only the nominal damages that would be given for stepping upon the land and going to the boathouse, but for the injury to the boathouse, which the plaintiff in fact owned, and to the personal property there. Verdict and judgment for the plaintiff.
The orator claims that that judgment is conclusive here on all the defendants, all of whom knew about the case, and all but McArthur and Younger were witnesses in it. The defendants claim the contrary, and say that it is not conclusive on any of them, not even on Brooks, though he was a party, because they say (1) that there is no identity of parties, cause of action, subject-matter, nor conditions; (2) that said judgment is open to inquiry, because it is impossible to say on which of two issues it was based; (3) that it did not settle the question of title so as to bar an inquiry into it here; and (4) that the orator waived the estoppel, if any there was, as his bill indicates that he desired that any doubt arising out of the uncertainty of the trespass suit in respect of establishing title in Mrs. Chennette adverse to Brooks and Younger and their tenants, should be forever settled; and as it prays that the court take jurisdiction of a state of facts that would hardly warrant such jurisdiction if said judgment is a bar; as, of facts essential to establish the title that he now claims was fully litigated in the trespass suit; and as it prays that "all the rights of the various parties be fully and finally determined."
As to the identity of parties. It is said in 24 Am. & Eng. Ency. Law, 2d ed. 733, that it is no objection to the application of the rule of res judicata that the parties to the former action include some who are not joined in the subsequent action. nor the converse; that the rule is applicable to all who were parties in both actions. So in 23 Cyc. 1242, it is said that when both the party offering a judgment as an estoppel and the party against whom it is so offered were parties to the action in which the judgment was rendered, it is no objection that the action included some additional parties who are not joined in the present action, nor that there are additional parties in the present action; but that this does not make the judgment admissible as evidence either for or against parties to the pending action who were not parties to the action in which it was rendered. And so are the cases. Thus, in trespass on the case against two, one pleaded in bar a former adjudication in his favor between him and the plaintiff alone, and had judgment. The other pleaded the general issue and the same adjudication, and judgment went against him on both. Lansing v. Montgomery, 2 Johns. 382.
So in Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308, it is said not always to be essential in order to bar an action by a former judgment that all the parties in both actions should be the same; and held that if the plaintiff's cause of action in that case was litigated in an issue made and adjudicated in a former action between him and one of the defendants, that that defendant could plead the former judgment though the other defendant was not a party to that issue, and so could not use that judgment as a defence.
So in Nave v. Adams, 107 Mo. 414, 28 Am. St. Rep 421, 17 S.W. 958, it was held that a judgment is conclusive of the issue involved in a controversy as between parties and privies,...
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