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Propagation Society v. Sharon et als.

sentence of any statute of limitations of this state, which exempts, or which might be construed to exempt any person or persons beyond seas, or any person or persons without any of the United States, from the operation of any statute of limitations, be, and the same is hereby repealed.” It is clear, then, that unless there is something special in this case to prevent it, the statute would commence running against the plaintiffs, upon the adverse possession of Eli Hayden in 1832, and would ripen into a perfect title after the expiration of fifteen years from that time, and the case shows that he occupied under his deed until the 14th of July, 1849. It is claimed by the plaintiffs' counsel, that the effect of the negotiation between the town of Sharon and John A. Pratt, in relation to this lot of land, and which commenced in 1833, and ended in the execution of a permanent lease of the lot to the town, by Pratt, in virtue of a power of attorney from the plaintiffs, said lease bearing date the 12th of September, 1840, and upon its face reserving certain annual rents, would be to estop the town from setting up an adverse possession against the plaintiffs, or denying their title, and that this estoppel is equally operative against the Haydens.

Though it be assumed that the relation of landlord and tenant, technically existed between the town and Hunter, and also as to Lamphear and his grantees, so that neither of them, in an action by the town, could be permitted to deny the title of the town, yet it is well settled that a tenant may repudiate his tenancy, and claim adverse in his own right against his landlord, and the statute will commence running against the landlord, from the time he has notice of such repudiation of the tenancy. See Willison v. Watkins, 3 Peters 43. Geerno v. Munson, 9 Vt. 37. Administrator of North v. Barnum et al., 10 Vt. 223. When Lamphear, in 1816, assumed to give to Eli Hayden. a warranty deed of this lot, in fee simple, with the usual covenants to secure the title, and Hayden accepted it, and assumed to hold under it, it was, in effect, a repudiation of the tenancy, not only by Lamphear, but also by his grantee Hayden.

Though this may be a full and an unequivocal repudiation of the tenancy, still it may be said, the statute would not run until the landlord had notice of it, and that the case shows no such notice. But suppose the statute would not begin to run against the town, Propagation Society v. Sharon et als.

until notice had been given, can that help the plaintiffs' case? The relation of landlord and tenant never existed between the plaintiffs and the town, at least previous to the lease in 1840, or the plaintiffs and Hayden. Their claims of title were always adverse, and though it should be conceded that Hayden might be estopped from setting up an adverse possession, as against his landlord, until the landlord had notice of the repudiation of the tenancy, still this estoppel would not, as I should apprehend, extend to the plaintiffs, who claimed by a title adverse to that of the town. The case of Administrator of Hall v. The Town of Coventry and F. W. Hammond, 4 Vt. 295, seems much in point.

The paper title of the plaintiff, in that case, was admitted, and the only question was, whether he was barred of his action by the statute of limitations. The evidence tended to show that for more than fifteen years before suit brought, the possession of the lot had been taken under the town, and the possession of the lot under the town, had been transmitted from one occupant to another, they paying rent to the town, until that part of the lot sued for passed into the occupancy of Hammond, and rents had been paid on it to the town, as one of its public lots. The court charged the jury, if they found an actual possession of the premises demanded, adverse to the plaintiff's title, to have been taken by the defendant Hammond, or those under whom he claimed, and continued more than fifteen years without interruption, before the suit was brought, whether such possession was subject to such supposed right of the town or not, the action was barred. It was claimed in the argument that the possession of Hammond could not avail him personally, because he occupied under the town, and it could not avail the town, regarding him as their tenant, because it was said a town could not acquire a title by an adverse possession. But the court did not adopt the argument of the counsel in either respect. They say, “whether the possession of Hammond for fifteen years shall enure to his benefit, or that of the town, is a matter between him and the town merely, and whether Hammond claimed in his own right or under the town, was immaterial. Either,” they say, “was adverse to the plaintiff's title.” So it may be said, I think, of Hayden's possession, in the present case.

But from the exceptions it is clear, so far as the plaintiffs are

Propagation Society v. Sharon et als.

concerned, at least, that the adverse possession of Hayden was in his own right, and not in the character of a tenant, under the plaintiff. He purchased the entire fee of Lamphear, upon a consideration of six hundred dollars, as named in the deed, and took from his vendor an absolute warranty deed, with the common covenants, and entered and occupied under his deed; and no estoppel from his relying upon his adverse possession, in his own right, can be urged against him by the present plaintiffs. If Eli Hayden had a valid title, in his own right, against the present plaintiffs, a good title was conveyed to William Hayden, in July, 1849; and it is to be presumed William Hayden entered under his deed, though this is not expressly stated in the exceptions. I should apprehend the lease from the plaintiffs to the town of Sharon, executed in 1840, could not help the plaintiffs out of their difficulty, although we assume it to be a valid lease, and unaffected by the discharge of Pratt, as the agent of the plaintiffs. Eli Hayden was in the adverse possession of the lot, from the time he took possession, under his warranty deed, in 1816, in point of fact, both as to the plaintiffs and the town of Sharon.

Whatever effect this lease may have, as between the plaintiffs and the town, it cannot, I should apprehend, have the effect to create a tenancy between the plaintiffs and Eli Hayden. The town, when the tenancy was first created, and, indeed, up to 1840, stood upon their adverse right to the plaintiffs, and all that could be claimed of the tenants, was to attorn to the town, as their landlord, and the town could not compel them to attorn to the plaintiffs. As the defendant Hayden claimed adverse to the plaintiffs, and had a right to so claim, from the time he went into possession under his deed, until his claim had ripened into a title, there is no ground to presume he was holding as a tenant to the plaintiffs, and that he acquiesced in the lease to the town, and consented to hold, as tenant to the plaintiffs. Besides, the exceptions expressly find that he occupied, under his deed, until the 14th of July, 1849.” As against the plaintiffs, the Haydens have the better title; and, as it was well said in the case of Hall's Administrator v. Town of Coventry and Hammond, 4 Vt. 297, whether the possession of the defendant Eli Hayden, for 15 years, shall enure to his benefit, or to that of the town, is a matter between him and the town merely.

Propagation Society v. Sharon et als.

So far as the plaintiffs were concer

cerned, it was immaterial whether Eli Hayden claimed in his own right, or under the town. Either would be adverse to the title of plaintiffs.

But there are other grounds upon which this case may be put, and which, perhaps, to some, may be the more satisfactory and better ground to rest the case upon. Though the conveyance from the town to Hunter, and from Hunter to Lamphear, may be technically in the form of a lease, yet it is apparent that it was never the intention of the parties to create the substantial relation of landlord and tenant between them, but that the instruments, whatever you please to call them, should, in effect, convey a fee. They run to the lessee, to his heirs and assigns, as long as wood grows and water runs, reserving, as rent, one barley corn, annually, if demanded. To all substantial purposes, the leases, if you call them such, conveyed the fee. They are but leases, in form. No rights, or duties, which ordinarily exist between landlord and tenant, are created by them. They are permanent in their character; the lessee is not bound to keep in repair, or surrender up the premises upon any condition whatever; and, in fact, the leases contain a covenant to warrant and defend the possession to the lessee, and to his heirs and assigns; and no rent is reserved, for the non-payment of which, an ejectment could be maintained. The barley corn rent is but nominal, and it is only payable if demanded. The maxim, de minimis &c., may well apply to the case. If we regard Hunter aud Lamphear as strictly tenants, under the town, and that that tenancy was binding upon Hayden, although he entered into possession and had the title by a common warranty deed from Lamphear, yet it is not a case where notice was necessary to the town of the repudiation of the tenancy, by Hayden, in order that the statute might run not only against the plaintiffs, but also against the town. The very object of requiring notice to the landlord is, that he may protect his rights; but to require it where he has no rights to protect, would be a useless ceremony.

The law will not require an idle act to be done. The fact that Hayden purchased the premises in fee, took a warranty deed, and entered into possession under it, and claimed title by reason of it, was a full repudiation of all tenancy under the town, and no notice, in this case, being necessary to the town, the adverse possession at

Stone v. Huggins.

once became operative against it, and, as a result, the title became perfect in Hayden before the execution of the lease from the plaintiffs to the town, in 1840, as against the town, and consequently he cannot be affected in his rights, by reason of the town's taking that lease, he not being in any way privy to it; and before this suit was brought, Hayden had acquired, against the plaintiffs, a title by more than fifteen years adverse possession, it having, at all events, commenced in 1832.

The result must be that no recovery can be had against the Haydens, because they have the title ; and none against the town, because they were not in possession by themselves, or tenants, when the suit was commenced. In this view it is not necessary to decide what should be the effect of the lease to the town, in 1840, as between the immediate parties to it.

Judgment of the county court is affirmed with costs.


Assumpsit. Liability of the defendant upon the facts reported.

The plaintiff having, at the request of the defendant, who was one of the selectmen

of the town of Windsor, taken the highway tax bill of one of the districts in said town, and having made expenditures of labor and money in the necessary repairs of the highways in said district to an amount largely exceeding all that he was able to collect on said tax bill, which he had been unable to recover of said town; it was held that upon the facts found and reported, the defendant had assumed, and was under no personal liability for the same.

Book Account. The auditor reported substantially as follows. At the annual March meeting of the town of Windsor, in the year 1848, the defendant was chosen first selectman of said town, and took upon himself the duties of said office; and at said meeting, Joel S. Houghton was appointed highway surveyor for district No. 5, in said town. In the latter part of May, 1848, the defendant went to Houghton with the tax bill and told him he was appointed surveyor for said district. Houghton declined to take the bill, and

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