George S. v. School District No. 13

The opinion of the court was delivered by

This is an action of ejectment. To sustain it, the plaintiffs rely upon title and right of possession. "For the purpose of showing title, they introduced in evidence a certified copy of the record of a division of the real estate of Nathan Harrington, deceased, among his heirs. It appears from this record that a piece of land containing ten acres was set-off to Silas Harrington.

The plaintiffs also introduced in evidence, subject to the defendant’s exception, a writing signed by the selectmen of the town of Barre, dated July 15, 1850, and recorded in the records of Barre, purporting to set off the school lot in question to the defendant. This writing, by its terms, was to be void, unless *190the defendant should pay to the heirs of Silas Harrington fifteen dollars. In 1852, Silas Harrington’s administrator conveyed to the plaintiffs’ grantor, Ira P. Harrington, about six acres of land, described in part as the same land set off to Silas Harrington as aforesaid. In 1883, Ira P. Harrington’s administrator conveyed to the plaintiffs the same land, excepting therefrom what had theretofore been conveyed to the defendant. The plaintiffs claim title to the demanded premises under this deed'. It does not appear that Nathan •Harrington ever had title to, or right of possession of, the school lot. It appears that the school lot is not a part of the lot setoff to Silas Harrington. The selectmen of the town of Parre had no authority to set off land to the defendant. There was no statute then in force authorizing them so to do ; and, the pretended set-off being void, the writing should have been excluded. Prom the records and facts found in relation to Silas Harrington’s title, we hold that he did not have title to, or right of possession of, the demanded premises at the time of his decease. The school lot is within the boundaries contained in the deed from Silas Harrington’s administrator to Ira P. Harrington, but this did not give Ira P. Harrington title thereto.

As before stated, Silas Harrington did not have title to the lot at the timd of his decease; he having no title, his administrator could not convey the lot by including it in the boundaries contained in his deed. Bank of Middlebury v. Rutland, 33 Vt. 414.

Ira P. Harrington did not have title to the lot at the time of his decease, unless he acquired it subsequently to the date of the deed from Silas Harrington’s administrator to him, by adverse possession. He occupied the lands southerly and easterly of the school lot for thirty years under his deed from Silas liarrington’s administrator; and, during all this time, he exercised no acts of possession within the limits of the school lot, nor claimed title or right of possession under his deed, nor questioned the defendant’s title thereto. It does not appear that the school lot *191was ever a part of tlie lots occupied by him, but it does appear that it is not a part of the land owned by his grantor. The school lot was in the undisputed possession of the defendant for school purposes from some time prior to 1835 until 1889. The plaintiff’s grantor excepted from his conveyance land theretofore deeded to the defendant. This exception clearly has reference to the lot in question, and indicates that the parties to the deed then understood that the lot had been conveyed by some one to the defendant. Erom these facts, we hold that Ira P. Harrington did not acquire title, and that the plaintiffs have neither title nor right of possession to the demanded premises.

The plaintiffs introduced in evidence, subjectto the defendant’s exception, the district records, from which it appears, that, at a meeting held November 26, 1852, the district voted to pay Ira P. Harrington fifteen dollars for land occupied for a school house; and that, at subsequent meetings held in 1869 and 1813, committees were appointed to settle, or confer, with Ira P. Harrington on land damages. "Why this action was taken does not appear. It does not appear that Harrington was claiming that he owned the lot, nor that he was claiming pay for it, unless such fact is inferable from the circumstance that he refused to pay his school tax in 1811 on the ground that the defendant was owing him for the land. The defendant at this time had been in tbe. uninterrupted possession of the lot for more than thirty-five years. After such iminterrupted possession, it will not be presumed, from this action of the defendant and claim by Harrington, that the defendant did not have title to the lot, nor that the title was in Harrington.

The plaintiffs’ failure to show title, or any acts of possession by them or those under whom they claim, renders it unnecessary to consider further the effect of the action thus taken by the defendant, or to decide the questions relating to the'defendant’s title or the character of the occupancy of the lot. The defend*192ant’s possession is itself sufficient against the plaintiffs and all other persons excejjt the true owners.

Judgment reversed and judgment for the defendant.