Hezekiah H. Reed, Administrator of A. Craigin, vs. D. H. Shepley and Peletiah Charles; Same Plaintiff vs. D. H. Shepley and Asa Baldwin, 6 Vt. 602

The opinion of the court was delivered by Collamer, J. — Mortgagors are estopped to deny the title they have created in the mortgagee. When any part of the purchase money is due, the mortgagor becomes, sub modo, tenant at will to the mortgagee, and as tenant, is not permitted to deny his landlord’s title. When Ebenezer died, his estate, under our statute, passed by-descent to his father, John, who took possession. This possession had no character adverse to Craigin. A possession always enures to the legal right of the possessor, and so Craigin could not have treated John as a wrong doer.

John was thus in possession of both lots as tenant to Craigin. If a tenant wishes to purchase in an outstand-. ifig title, or set up one himself, adverse to his landlord, he must first surrender up the possession to the landlord, and so fairly end the relationship between them. He is not permitted to retain the possession he has acquired under the landlord, and pervert it to a new purpose, hostile to him.

All who, in any way, directly or indirectly, obtain this possession of the tenant, by purchase or consent, taking his improvements, are tenants in his place; sustaining all the relationships and responsibilities resting on him in that capacity, whether informed of this or not. This was fully decided in the case Bowker vs. Walker, 1 Vt. Rep. —. The court correctly left to the jury the question, whether such was the character of the lease to Williams, and the conveyance to Sprague; and Charles, deriving title from Sprague, has the same character as to tenancy.

As to the defendant, Shepley, he is yet a stranger as to title, and not tenant; and the plaintiff’s being in possession by his tenant is sufficient to entitle him to recover against a stranger, until he shows a better title. All then seems to depend on the gooc^ness f-he vendue deed to Shepley. In relation to the vendue, it is a title, stricti juris, and it has long been decided, that strict compliance with the statute must be shown by him who sets up such title.

The recovery of the land is in the nature of a forfeiture, and all the legal prerequisites conditions precedent, to be strictly and literally complied with. Among other objections to the proceedings, is this: The statute assessed a tax of four cents on each acre. By the return of the proceedings on the record, it distinctly appears, that lots of land, and among them the lots now in question, are stated to contain one hundred acres each, and assessed three dollars and seventy-six cents.

It is suggested in argument, that this, being too small, cannot be complained of by the owner; but that does not show it a tax assessed under the statute. Such an assessment was not authorized by the law any more than a tax of one cent on the acre. Such an assessment cannot be received under the act laying a four cent tax. It appears the defendants offered to prove by parol, that, though it appears by the record that the lots contained one hundred acres each, yet in fact they contained less, which was known to the committee and collector, and therefore the assessment was made accordingly.

This evidence was rejected by the court; and we think was correctly rejected. The statute clearly contemplates, that the whole should appear of record. To admit such proof, would permit it to rest in parol, in part or in whole, If the lots contained less, it was entirely easy so to put them down in the proceedings. Again, this testimony directly contradicts the record, as much as it would to alter the number or range by parol, and so to fix the sale on a different lot.

Much has been said in the argument of this being a stale claim, long since abandoned by Craigin, and now asserted on a speculation; and insisting that it should, in some way, be treated as quieted. It does not appear that the attention of the court below was called to such a point, nor does the case show any sufficient evidence to lay the foundation for any such charge to the jury. The only course would be, to put it to the jury, from the lapse of time and other circumstances, to presume that the debt, for which the mortgages were given, had been paid, or that Craigin had released. In the case of Jackson ex. dam.

Sackett vs. Sackett et Raymond, 7 Wendall, 94, it was holden, that when the statute of limitation had run on the debt, . a presumption of payment arose,- and the mortgage given for its security could not be enforced. By such a principle, thé plaintiff would be barred in this case; but this court have, before now, refused to adopt that doctrine. Our statute of limitation in ejectment is expressly fourteen years after action accrues, which, in this case, was on one of the notes becoming due. The time had not elapsed at the commencement of this suit.

It has been holden, when persons, who were not parties to the contract which created the relationship of landlord and tenant, or informed thereof, come in possession of the land, claiming in their own right, and ostensibly asserting said right,- and the landlord knowingly acquiesces therein for a term as long as the statute of limitation, he has been holden as quieted and barred. Thomas Reed and Pede for plaintiff. Bell and Cushman for defendants. But in this case nothing resembling this toot place until 1819.

The testimony presented no such state of circumstances as would have authorized any such decision as the counsel for the defendants seem now to desire. The case against Shepley and Baldwin is precisely the same in its features as that against Charles, except that Shepley shows a deed from the widow of Craigin, there being no children ; and insists that that gives him an undivided interest in the land. Craigin was a mortgagee. This was a chattel interest.

It passes to the executor or administrator as incident to the debt, and is afterwards holden by testament or administration, not by descent, and the widow is not entitled to dower until foreclosure. Judgment' affirmed...