Stephen A. Greeno v. Munson & Munson, 9 Vt. 37

Redfield, J. delivered the opinion of the Court. The case finds that Boardman went into possession of the land under deed. This possession would then extend to the whole land.

When plaintiff’s father went into possession under Boardman, his possession would be that of Boardman, and it would remain the possession of Boardman until Thomas Greeno received his deed of the thirty-two acres, unless he did some act to repudiate his tenancy, and thereby become a trespasser, And after the deed to himself of thirty-two acres, if he continued in possession of the remaining portion of the pitch, it would be in subordination to the title of Boardman.

The doctrine of the law of tenure, that the tenant cannot dispute the title of the landlord, is one too long established, to be now brought in question ; and it is one of almost universal application. It has been repeatedly recognized by this court, in reported cases. Tuttle v. Reynolds, 1 Vt. Rep. 80. Bowker v. Walker, 1 Vt. Rep. 19. The doctrine of the law, alluded to above, has been, by courts, extended to various other relations of tenure, not coming strictly within the definition of a tenancy.

Thus, it has always been held, that the mortgagor shall not be heard to dispute the title of the mortgagee, nor the trustee of the cestui que trust, nor, in short, shall any one, who goes into possession of land under another, or acknowledging the title of another, be heard to dispute the title of that other, during the continuance of the relation. The same doctrine has been extended to one, who goes into possession of land, under a contract of sale.

Any or^feaing into possession of land under the circumstances namj^fcannot set up any outstanding title, which he may have piwKised in, but must, first, bona fide, surrender the possession, anchoring his action to try that title. Blight’s Lessee v. Rochester, 7 Wheaton’s Rep. 535. Willison v. Watkins, 3 Peter’s Rep. 43. as to the twenty-two and a half acres, not included amiBoardman’s deed to Thomas Greeno, the possession has all along been the possession of Boardman ; and when Boardman’s title had passed to defendants, they were clearly entitled to hold the land against the plaintiff.

The pretence, on the part of the plaintiff, that he had acquired title to the land, by the statute of limitations, is clearly without foundation. A possession, commenced under a contract of sale, is not an adverse possession, in any sense, nor can the vendee, or any one going in under him, whether knowing the contract of sale or not, ever acquire title, by the statute of limitations, to the land sold, until his possession has been first bona fide surrendered, or until he has, by some unequivocal act, repudiated the contract, and this is distinctly known to the vendor.

If, after such determination of the relation, the vendor, cestui que trust, mortgagee, or landlord, as the case may be, lies by without asserting any claim of title by ejecting the wrong doer, his right of entry is barred by the statute of limitations, and the title quieted in the adversary. And, in some cases, it has been held that it makes no difference, whether this disclaimer of tenure, by the one in possession, is during the existence of the lease, or other contract, or after it has expired.

The unexpired term is forfeited, it is said, and the tenant is quasi a trespasser, and immediately liable to action of ejectment without notice to quit, and cannot protect himself in his possession, in any other way, except by title acquired by the statute of limitations. See cases last cited. There is no evidence in the present case, tending to show any such disclaimer of title. The judgment of the County Court is affirmed.