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Doolittle et als. v. Holton.

seemed ever to exist, as matter of fact, in regard to the regularity of the administrator's sale, was as to the license in fact being issued to the administrator de bonis non. One appearing of record to the first administrator, and none to the second, raises a very natural doubt whether the sale was not, in fact, made upon the former license. The necessity of some sale of real estate seems to have been apparent, from the debts exceeding the amount of the personalty. The probate court did order a sale of the real estate, i. e., the farm in question, in general terms. This would be a sufficient ground from which to presume the necessity of the sale. Indeed, after such an order, and the actual sale, we should scarcely allow an inquiry into the foundation of such an order. That being a matter within the exclusive jurisdiction of the probate court, unless the order showed, upon its face, that it was made for some other purpose than the payment of debts, or when other means sufficient existed, we should, I think, not allow the jurisdiction to be defeated, by proof out of the record. And all deficiencies in the recitals of the order will be supplied by intendment.

And, as it was competent for the court of probate to sell the whole real estate, the same being difficult of division, if they deemed it expedient or conducive to the interest of the estate, a general order of sale of this real estate being made, and the whole being sold, it should be, perhaps, presumed that the sale proceeded upon such judgment and discretion of the probate court, or, upon the necessity of selling the whole for some sufficient reason.

If a license to sell be shown, it will be presumed to have been upon sufficient previous notice, and the other preliminary proceedings to have been regular, the bond and oath of office, &c., as in other cases. The presumption, omnia rite acta, applies with especial force to the proceedings of courts of probate. And, after so great a lapse of time, although we cannot make any presumption against the plaintiffs, on the ground of possession merely, we certainly should be at liberty to take into account the enhanced difficulty of showing the true state of the facts, as they existed at the time, and the imperfect manner in which the business is known to have been transacted, at that early day, and the probability that if such an order had existed, it might not have been recorded or preserved, and the extreme improbability that if such an order had

Morse v. Weymouth.

existed, and had not been recorded or preserved, that its existence could now be shown.

No part of the evidence admitted in the trial in the county court is specially objected to. It is said it is slight, circumstantial and fanciful, in general terms. But when we come to examine it in detail, and to look into the charge of the court, it seems to us the trial was managed with very considerable care and circumspection. It may be true that the jury have found the fact of a license to Jenks upon very slight grounds, and that the rules for weighing the evidence given to the jury are calculated to make the most of it. We think that is so, and we think it commendable, both in the court and jury. It is certainly very much to be regretted, that after such a lapse of time, when there is every reason to believe that the administrator accounted for the avails of the whole sale, and thus the price of the land came, very obviously, to the use of the heirs, that any technical defect in proceedings should defeat the title, and bring loss and ruin upon those who have trusted to the regularity of these judicial sales.

We could not, we think, suggest any improvement in the mode in which the county court have carried out the purpose of this court, in granting the new trial; * and, the result is certainly one which might have been, and perhaps ought to have been expected. Judgment affirmed.

See same case, 26 Vt. 588.

JAMES MORSE v. TIMOTHY WEYMOUTH.

Trespass in repairing highway. Construction of deed. Submitting it to the jury.

The defendant, for the purpose of widening a side-hill highway upon the plaintiff's land, drew stone and dumped them on the lower side of the road so that some of them rolled down against and through the plaintiff's fence into his field. The widening of the road was necessary, and was done in a proper and reasonable

Morse v. Weymouth.

manner, with the approval of the highway surveyor. Held, that the defendant was not liable to the plaintiff in an action of trespass for so doing.

The construction of a deed should not be submited to the decision of the jury with out limitation or restriction, or specific instruction in reference to it. But if it is, and they give it a correct construction, a new trial will not be granted.

A deed of a part of lot No. 17," "laying in the N. E. corner of said lot, and is that part of said lot which lays on the north side of the road," and an exception in a deed of lot No. 17 to another person, of the same date, of that part of it "which lays on the north side of the road at the N. E. corner of said lot, estimated at about three-fourths of an acre," construed as conveying and excepting not only the north-east corner piece but also a small strip on the north-easterly side of a road running from the south-east to the north-west over said lot but separated from the N. E. corner piece by a curve in the road, which run for a short distance upon the easterly line of the lot.

TRESPASS ON THE FREEHOLD. Plea, the general issue; trial by jury, June Term, 1855,-POLAND, J., presiding.

The plaintiff gave evidence tending to show that in the summer of 1853, the defendant drew several loads of small stone from his fields upon the highway running through the plaintiff's farm, and where it run along upon a side-hill, and turned them off the lower side of the road; and that some of the stone rolled down against the plaintiff's fence, and some rolled through the fence into his fields, and that some of them were piled or thrown off opposite. and obstructed a bar-way to the fields, and that the plaintiff was compelled to remove them.

The defendant's evidence tended to prove that the highway at this point was very narrow and unsafe, and that it was necessary and proper to make said road wider, and that the piling of small stones upon the lower side of the road was a proper mode of widening and repairing the same; that after the defendant had drawn and placed two loads of stone, he applied to the surveyor of the district, who approved of what had been done, and told him he might draw more stone and place there, but, as the taxes were all expended, he must do it without charge to the district; and that after this the defendant drew four or five loads more and placed them on the lower margin of the road;—and that, in a few days after this, the selectmen of Waterford ordered a sum of money to be laid out on the road at this same point, in widening it further, and in covering up the stone the defendant had placed there with earth, and that but very few stones rolled down against the plain

Morse v. Weymouth.

tiff's fence, and that no damage was done thereby, and that the bar-way was obstructed by what was done by the selectmen, and not by him.

The court charged the jury that, if the road was unsafe at this point, by reason of its being narrow, with a declivity on the lower side, and the placing of the stones there was a proper method of repairing the road, and was done by the defendant for that purpose, and in a proper and reasonable manner, and was approved by the highway surveyor or selectmen, that the defendant would not be liable to the plaintiff'; and that for the two loads of stone placed there before any application to the surveyor, if they were placed there properly for the necessary repair of the road, the defendant would not be liable, if it was subsequently approved of by the surveyor.

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The plaintiff read in evidence a deed from George Alexander to himself, dated February 25, 1841, of lot No. 4 in the 7th range and lot No. 17 in the 6th range, "except that part of said lot No. 17 which lays on the north side of the road at the north-east corner of said lot, estimated at about three-fourths of an acre." The defendant also read in evidence a deed from the said George Alexander to himself, dated the same 25th of February, 1841, of "a part of lot No. 17," "laying in the north-east corner of said lot, and is that part of said lot which lays on the north side of the road." Both parties introduced plans of their farms, which adjoined each other, showing the relative location of said land, and the location of the highway, and of that portion of lot No. 17 which lay upon the north or east side of the highway in question, both which plans were referred to by the bill of exceptions. The plaintiff proved that near the southern termination of that part of lot No. 17 lying on the easterly side of said highway, the defendant had cut and cleared away some small trees and brush, partly between the travelled path of the road and the defendant's fence, and partly in the defendant's fields, as enclosed by his fence,-and claimed that the portion of lot No. 17 deeded by Alexander to the defendant did not include the strip upon which said trees were cut, but was restricted to the triagular portion directly at the north-east corner of the lot. The court submitted it to the jury to determine from the language of the deeds, and the condition and location of the land, what was

Morse v. Weymouth.

intended to be conveyed,-whether only the triangular portion in the north-east corner, or that and the strip below, upon that side of the road, upon which the trees were cut. The jury returned a verdict for the defendant. Exceptions by the plaintiff.

From the plan which came into the hands of the reporter it appeared that the course of the east line of lot No. 17 was N. 23 deg. W., and that the highway from the east struck said east line between fifty and sixty rods southerly from the north-east corner of the lot, and thence run northerly on said east line, but bearing to the westerly so that it left it about sixteen rods north of the point where it first struck it, and continued to bear westerly for the distance of about ten rods further, and then curved easterly, so as to come in contact with the east line of the lot about five or six rods further north, and then run upon the line about four rods, and left it at a point about twenty rods south of said north-east corner, taking a more north-westerly course and striking the north line of the lot. about fifteen rods west of said north-east corner. The north-eastcorner of the lot cut off by the road contained about one hundred, and the piece in dispute not over from ten to twelve rods of ground, its greatest width not exceeding one rod, and tapering from that to a point about ten rods distant in one direction, and from five to six rods distant in the other. The defendant owned the land east of both pieces, which were about four rods apart, being separated from each other by the passing of the road over said east line as before mentioned.

for the plaintiff.

The court erred in submitting to the jury what was conveyed by the deed from Alexander to the defendant. The deed is definite in terms, and fully describes what was conveyed. Hollister, 18 Vt. 294.

Exr. of Stevens v.

The defendant had no right to make any improvement upon the road unless by direction of the surveyor or selectmen. And the stone drawn and rolled down against the plaintiff's fence and into his field by the defendant, before being ordered by the surveyor or selectmen, was a trespass.

S. W. Slade for the defendant.

There can be no question, from the situation of the land con

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