Stevens v. Whitcomb

The opinion of the court was delivered, by

In regard to the right of the county court to compel the witness to testify against his interest, there can be, I appre-. hend, little doubt. It is now well settled in this state, by a long course of practice and one decision of this court, ( Ward v. Sharp, 15 Vt. 115,) that any interest, short of being the rea? .party, will not excuse a witness from giving testimony. If the witness be the red! party to the suit, he cannot be compelled to testify, and by consequence his declarations and admissions, against his interest, become evidence against the party standing in his right.

In regard to the adverse possession of William Cox, and those claiming under him, having the effect to avoid the deeds given dur*124ing that possession, and by which the plaintiff derives title to the premises, we can entertain no doubt. Any adverse possession, which is sufficient to create a disseizin, is sufficient to render void all conveyances of the land of which the grantor is thus disseized. The common law rule against conveying such mere rights of action, and our statute in affirmance of that rule, are directed against just such conveyances. To say, then, that the grantor, remaining in possession after his deed, is incapable of committing a disseizin upon his grantee, involves an absurdity too gross almost for argument. He is a mere tenant by sufferance, whom the grantee may elect to treat as a tenant, or as a disseizor. He may bring ejectment, or treat him as an occupier under himself. But if the grantor set up a claim of title in himself, and this be made known to the grantee, the grantor, from that time, becomes a disseizor in fact, — the grantee can no longer treat him as a tenant. Hence he cannot convey the premises; and, if he suffer the term of the statute of limitations tó elapse, his right to the land is gone. These principles are too well settled in this state to require much discussion. Robinson v. Douglass, 2 Aik. 364. This subject is very fully discussed in Hall v. Dewey et al., 10 Vt. 593. When it is said, in the books, that the tenant cannot dispute the title of his landlord, or that the grantor cannot dispute the title of his grantee, nothing more is meant, I apprehend, than that he cannot prevail against his landlord, or grantee, in disputing his title in a court of law. He has no legal or moral right to dispute such title, but he has nevertheless the physical ability so to do ; and, when he sees fit to exercise that ability, the legal effects of the act are to put him in an antagonist position, the same as if he had originally entered into the possession unlawfully. Judgment affirmed.