Seymour Selleck vs. Peter Starr, 6 Vt. 194

Williams, C. J., — Alter stating the facts which were attempted to be proved, delivered the opinion of the court. ■ In this case it is admitted that Epaphras Miller, who deeded the premises in question to the plaintiff, was the owner of the same, and the defendant claimed only an estate therein during his life.

It appears that it was in evidence that the defendant was in possession claiming such estate, and although he consented to an exchange or a removal of the office from its present site before Miller deeded to plaintiff, yet the agreement was not perfected, and before the deed was delivered the office was replaced on the same foundation where it had formerly stood. It was claimed on the part of the defendant that in consequence of his possession, the deed executed by Miller to the plaintiff was void by force of thg statute entitled, “

an act to prevent fraudulent speculation and sales of choses in action.” The court, in pursuance of a request from the defendant, charged the jury that “ if they found the defendant wag in actual possession of the land in question, claiming a life estate in the same when the said deed was executed, that the deed came within the purview of the statute and was void as it respects the defendant, and the plaintiff could not recover — ■ that it was not necessary for the defendant to show that he had actually a life estate in the land in question; it was suffix cient if he was in actual possession, claiming a life estate in the premises, though his title might be defective — that the court considered such possession and claim of title to be ad^ verse to the title set up by Mr.

Miller when he deeded to the plaintiff, and a. deed executed under such circumstances was void.” The court also charged the jury in relation to their right to presume a life lease to have been executed by Miller to Starr, the defendant. The objection was made to the charge on this point, and it is not now to be re-examined.

As the jury may have found for the defendant under the charge objected to, and as they must have found the deed of the plain-void under the statute aforesaid if those facts appeared in evidence which are recited in the bill of exceptions, if the charge is incorrect, the verdict cannot be retained. ^ t0 ke observed that Miller was the owner of the estate in question — that defendant claimed only a life estate subordinate to the greater estate of Miller, and that the deed from Miller to the piaintiff was a quit-claim.

The question now to be considered is not whether the defendant in point of fact had such an estate as he claimed, but whether his claiming such an estate rendered the deed to the plaintiff void under the statute of 1807. That statute declares, that “all bargains, deeds, &c. of any lands, &c., made where any person shall be in actual possession, or in any other way adverse to the grantor, shall be null and void, and of no effect to convey said lands,” &c.

The statute in its terms does not embrace the case where the person in possession admits the existing title of the grantor, and claims to hold an estate under him and subordinate to him.

The question very naturally arises whether it was intended by the statute to avoid a conveyance made by a person having an actual estate or interest either in remainder or revision, where there is a tenant in possession claiming to hold an estate for life or years under him, or by grant from him, or whether it was intended to avoid those conveyances only where the possessor claimed the whole estate, adverse to the grantor, or under a person other than the grantor; so that the whole estate was claimed adverse to him.

We think the statute extends only to those cases where the possession is wholly adverse to the grantor, and the claim of the possessor is to an estate entirely to the exclusion of any right or title existing in the grantor, and under a title adverse to him. It has been said in the argument, that it was sufficient to avoid a deed under this statute that the person in possession claims to hold the same contrary to the will of the owner; and that it is sufficient if the grantor is disseized at the time of executing the deed.

But this would be evidently extending the provisions of the statute to an inconvenient length. In all cases of tenancy, during the continuance of the particular estate, the tenant can hold against his landlord. A tenant for life or a year, during the continuance of the lease has the absolute right to the possession, and cannot be disturbed in his actual possession and enjoyment by the lessor. A tenant for a year remaining in possession after his term expires is considered as so far a trespasser that an action of ejectment can be maintained against him. A mortgagor after condition broken' may be sued in ejectment.

But I apprehend the owner of land may make a valid deed or conveyance sufficient to pass all his interest in the same, and that such deed would not be void because his tenant for life or years was in actual possession, nor would it be avoided because he was disseized by his tenant holding over, or by a mere trespasser claiming no title. A man may always convey the estate which he holds in remainder or reversion, and his grantee will be entitled to the pos-ssession whenever the estate of the tenant for life or years shall cease.

In the case under consideration the defendant did not claim the land in question by possession, or by any title adverse to Mr. Miller. He claimed only a limited or subordinate interest under him; and as against the plaintiff he claims an estate for life by an elder and better title than his. Whether he rests his claims on a lease executed, or a leasé presumed, so long as he claimed a life estate under Miller, he cannot set up his possession under that claim to avoid the deed executed by Miller to the plaintiff, and thereby preclude an investigation of his own title.

If the defendant has a title it is antecedent to the title of the plaintiff and must prevail; and his claiming that the jury were to presume this title, does not put him on any different footing, as it relates to the operation of this statute, than if he claimed under a lease sealed and executed with due formality. It was competent for Miller to convey' to the plaintiff what estate he had in the premises, and if the defendant has forfeited his estate or was mistaken as to the extent of it, he must yield the possession to the plaintiff, who succeeds to all the title which Miller had.

The result is, that we are all of the opinion that the charge to the jury was erroneous, and as the verdict may have been found altogether upon the supposed defect in the plaintiff’s title, the case must again be submitted to a jury, and if the defendant has a life lease, or if his possession has been such that the plaintiff cannot evict him during his life, he will be protected in his possession. If he has not a title he must submit to the consequences which all others are subjected to under similar circumstances. The judgment of the county court Is reversed and a new trial granted.