Proprietors of Braintree vs. Edward Battles, 6 Vt. 395

The opinion of the court was delivered by Phelps, J. — This is<an action of ejectment, in which the. plaintiffs claim title to lot number 65 of the first division, in Braintree, as being comprehended in their original charter. The defendant claims title to the same, by virtue of a deed, from an original proprietor, as being no longer the common property of the proprietors, but as severed to an individual right. The case is very concisely stated, so much so indeed, that the real point in controversy is not readily apprehended.

The only construction, which we are able to put upon it, is the one already stated, presuming an actual ouster of the plaintiffs by the defendant; for, in any other point of view, it is impossible to reconcile the verdict and judgment with the acknowledged fact, that C. Brackett, from whom the defendant derives title by deed, was an original proprietor of the township. In this point of view, the importance and bearing of these facts could not have been overlooked. The deed from C.

B. to the defendant would, at all events, constitute him a tenant in common with the plaintiffs; and, assuming an actual ouster of the co-tenants, as the case seems to imply, the question clearly arises, whether the premises demanded-are to be considered as still subject to the tenancy in common, or as severed to the particular right, under which the defendant qlaims. Considering this to be the point in issue, it is difficult to conceive how the production of the charter could be important.

The controversy seems to turn upon a mere question of severance, upon which the original charter could not be expected to throw any light. As the case is stated, however,, it would seem to be necessary for the plaintiffs, to produce the charter, in order to show that the defendant claimed under the same title with themselves, orto shew an independant title in themselves. The question arises, whether a copy of th'e charter was admissible for the purpose.

It does not appear that any exception was taken to the authentication of the copy, but the exception is, that no copy was admissible — that the original should have been produced. The admission of the copy was put upon the ground of the loss of the original, and the question seems to resolve itself into this, whether the proof of the loss was sufficient. Proof of the actual destruction of an instru-meht is not necessary to let in secondary evidence of its contents.

From the nature of the case, proof falling short of this, must be received; and, in practice, when there is no ground of suspicions that the paper is intentionally suppressed, nor dis-cernable motive for a deception, courts are extremely liberal, in regard to secondary evidence. In this case, there seems to be no reason why the plaintiffs should prefer the exhibition of an authenticated copy to that of the original.

As a general rule, it is enough that search has been made, in the proper place, and with the proper officer, for a paper, the custody of whfch is committed by law to a particular person, and that the paper cannot be found. In this case the town clerk was the proper keeper of this paper, as the keeper of the proprietory records; and it was proved, that the charter could not be found in his office, nor had it been seen there for twenty years. This was certainly enough prima facie.

Proof that search was made in other places, not proper for the custody of the paper, and without any circumstances intimating that it might be found there, could not be required, nor would it have tended to prove the loss, if it had. The only answer to this is, that by the statute of 1797, revised laws p. 554, these charters are directed to be deposited in the office of the secretary of state, which would intimate that charter in question might be found there. This would render a search there necessary, before parol evidence of its contents could be received.

But the evidence received was an authenticated copy, and, for ought that appears, was duly cer-tiged by the secretary of state; in which case, it is made evidence by the same statutes. At all events, as the contrary does not appear, it must be taken to have issued from that office, or from that of the secretary of state of New Hampshire, and in either case, it would be proper evidence. The second exception relates to the evidence offered, to shew a title in James Brackett. Whether the evidence be considered sufficient for that purpose, is not very important.

Whatever may have been the effect of the votes of the proprietors, as respects him, or of his possession of certain other lands, under those votes, it does not appear that he ever possessed the lot in question. But the main reason why the evidence is to be regarded as immaterial, is, that the defendant does not connect himself with that title. The defendant, claims under a deed from C. Bracket, who is stated to have been an original proprietor. Had the lot in question been duly severed to his right, the defendant would have made a good title to it; but this is not shown.

If then, the land be still common and undivided, the deed from C. B. makes the defendant a tenant in common with the plaintiffs; and it is very clear, that it is not competent for the defendant to resist the right of his co-tenants, by setting up an adverse title in a stranger. The question however may be asked, whether, if the title of James Bracket be established, it does not defeat the action, by shewing the title out of the plaintiffs. Aside of the answer already given, viz : that the defendant would not be at liberty to set up such title, the question may be disposed of in another way.

The supposed title of James Brackett is derived from the plaintiffs, and if not established, the title is left in them. In order then to defeat the action, in this way, the outstanding title must be most clearly and satisfactorily made out. The suit could not be defeated by the existence of a doubtful claim of title, on the part of a third person, in no wise connected with the title of either party. What then is the title o^ J. B ? It rests upon a vote of the proprietors, of very doubtful validity.

That a majority of the proprietors have power to give away the common property, without the consent of all is a position, to say the least of it, doubtful. But it is very clear, that a vote of this doubtful character, of nearly thirty years standing, and unaccompanied by any possession of the land in question, does not afford that decisive evidence of title, which is necessary for the defendant’s purpose. Judgment affirmed.