probate court has exclusive jurisdiction of the rule of apportionment, different from the genassignment of dower, and if the dowress claimed eral rule. Ib. to have a special rule of apportionment of a 14. Repairs. A tenant in dower is not mortgage resting on the premises, the probate held, under G. S. c. 55, s. 13, to any more rigid court, we are inclined to say, alone has the rule in the management and preservation of the power to establish any such rule in her favor. property, than would be observed by a pruBut if the probate court assigns dower gener- dent owner of the entire estate. If the want ally in an equity of redemption, without in any of repair is causing no immediate injury, the manner determining the proportion which the tenant may pay a reasonable regard to a present widow shall pay in lessening the incumbrance, very high price of materials and labor, and wait this is equivalent to saying it shall be in propor- a reasonable time for prices to be reduced to the tion to her estate; that is, one-third shall be ordinary level. What acts are not waste, considplaced upon the widow's thirds, and two thirds ered and decided. Harvey v. Harvey, 41 Vt. 373. upon the other portions; and the court of chan- 15. Setting out dower. In the setting cery, upon bill by the dowress for that purpose, out of dower, it is the duty of the commissionwill apportion the burden according to this ers to appraise all the lands of the estate, and general rule in equity, except so far as the par- this they must do on view of the premises;— ties may have waived that rule, by an agree- for lack of this, their report was set aside. Kenment executed-the mere fact that the estate drick v. Harris, 1 Aik. 273. may have been purchased subject to the widow's As to assignment to widow, see PROBATE dower, not seeming sufficient to raise any special COURT, II. 2. (d). EJECTMENT. I. EJECTMENT. 1. For what the action lies. 2. The plaintiff and his title. E. 3. The defendant, his possession, muster. 4. Joinder of defendants. 5. Declaration. 6. Defense. 7. Extent of recovery. 8. Effect of judgment. II. DECLARATION FOR BETTERMENTS. I. EJECTMENT. 1. For what the action lies. 1. Ejectment does not lie for an casement,as a right of way. Judd v. Leonard, 1 D. Chip. 204.. 3. Commissioners set off to a widow, as dower, "three west rows of apple trees on the west side of the orchard, running north and south in the center between the third and fourth rows." Held, that this was a setting out of territory, and not merely a right to take and use the fruit of the trees; and that ejectment lay therefor. Patch v. Keeler, 27 Vt. 252. 4. Commissioners set to a widow, as dower, "two stalls at the south-west corner of the horse-barn," &c., "also twelve feet square on the loft over said stalls for hay." Held, that the identity of the stalls and space above could be shown by parol evidence; that the widow took a life estate therein, and that an action of ejectment lay therefor. Ib. 2. The plaintiff and his title. 5. Equitable title. Ejectment does not lie upon a mere equitable title. Dewey v. Long, Buck 2. A, owning land in fee, allowed B to 25 Vt. 564. Cheney v. Cheney, 26 Vt. 606. South erect a house upon it, under a contract to pay B Royalton Bank v. Downer, 28 Vt. 635. for the house when completed or convey him v. Gilson, 37 Vt. 653. the land for a price stipulated, at A's election. 6. Where A holds the legal title to lands, The plaintiff, a creditor of B, set off the house but in trust for B, and the same are set off on on execution against him. The defendant, a execution against B, the levying creditor acquires creditor of A, set off the land, expressly except- only the equitable title of B, and cannot maining B's interest in the house, on execution tain ejectment or trespass qua. clau., unless against A. A had never expressed his election where the previous legal title was in B and he to B. Held, that the ejectment for the house had conveyed the land by a deed void as to The creditor's remedy is in equity. lay for the plaintiff upon an ouster by the creditors. defendant. King v. Catlin, 1 Tyl. 355. Dewey v. Long. Buck v. Gilson. 7. The plaintiff in possession of land under actually in possession. Rood v. Willard, Brayt. S sold his betterments to the defendant, who 67. afterwards procured a conveyance of the land 17. Actual prior possesion, not apparently from S. Held, that the plaintiff could not tortious, will furnish a prima facie case for the maintain ejectment, although the defendant had plaintiff in ejectment. Perkins v. Blood, 36 not paid for the betterments, as agreed. Dow- Vt. 283. Ellithorp v. Dewing, 1 D. Chip. 141. ner v. Richardson, 9 Vt. 377. Hathaway v. Phelps, 2 Aik. 84. Doolittle v. 8. Under the general Banking Act of 1851, Linsley, Ib. 155. Warner v. Page, 4 Vt. 291. the plaintiff bank assigned a bond and mort-Reed v. Shepley, 6 Vt. 602. Russell v. Brooks, gage to the State Treasurer. Held, that with- 27 Vt. 640. ont a re-assignment, the bank could not main- 18. An execution debtor remaining in postain ejectment upon the mortgage, for want of session of the land after levy is, by statute, tentitle. South Royalton Bank v. Downer, 28 Vt. ant of the creditor, and may maintain eject635. ment against a stranger who ousts him. Hatha 9. Legal title. If the plaintiff in eject-way v. Phelps. ment has no title at the commencement of the suit, it cannot be aided by any thing done afterwards. McKenzie v. Putney, N. Chip. 11. Shattuck v. Tucker, Ib. 69. 19. A prior seisin and possession, though of less than fifteen years' standing, if not abandoned, give a right of entry, or right to maintain ejectment, against any one having no prior or better right. Hall v. Dewey, 10 Vt. 593. See POSSESSION. 10. The plaintiff in ejectment, in order to recover, must have title both when his action is commenced and when it is tried. He cannot 20. Administrator Heirs. Where no recover damages for rents and profits, unless he administrator of an estate has been appointed, recovers the land sued for. Burton v. Austin, the heirs may maintain ejectment without an 4 Vt. 105. 20 Vt. 88. Tryon v. Tryon, 16 order of distribution from the probate court. Vt. 313. McDaniels v. Reed, 17 Vt. 674. Buck v. Squiers, 22 Vt. 484. See PROBATE Cheney v. Cheney, 26 Vt. 606. (Changed by COURT, II. 1. G. S. c. 40, s. 4.) 21. The residuary devisee consented to a 11. Where several plaintiffs in ejectment sale by F, the executor, of a part of the real count upon a joint title and right of possession, estate, for the payment of debts and specific such title and right must be in them all, not legacies; and to enable him to do so, without only at the commencement of the suit, but also at the time of trial. In such case, where some of the plaintiffs have parted with their title to the defendants before trial, the case is not aided by G. S. c. 40, s. 4. Cheney v. Cheney. an order of sale by the probate court, he quitclaimed the premises to F, who sold the same, giving a bond to convey, and applied the price received in payment of such debts and legacies, and gave the purchaser authority to sue in the 12. If the plaintiff in ejectment have title at name of F, the executor, to recover possession the commencement of his suit and also at the of the premises then in the adverse possession time of trial, he may recover possession and his of the defendant.. The purchaser brought damages, notwithstanding he may, during the ejectment in the name of F, as executor, and, intervening period, have been without title by he having deceased, the suit was further prosehaving conveyed the premises to a third person. Beach v. Beach, 20 Vt. 83. Edgerton v. Clark, 20 Vt. 264. 13. A decree of foreclosure obtained by a third person against the plaintiff, but not yet expired, does not prevent a recovery. Catlin v. Washburn, 3 Vt. 25. cuted in the name of an administrator de bonis non of the estate. The deed to F, the executor, was not recorded, but the defendant had knowledge of it, and afterwards, and while the suit was pending, and after a decree of the probate court assigning all the estate to such devisee, he obtained from her a deed of the 14. The plaintiff is not prevented from re-premises. Held, that the title of the devisee covering, by having executed a mortgage of under the will, and the assignment by the prothe premises after the bringing of his action, bate court, enured to the benefit of the purchasalthough by a deed absolute in terms, but with er by force of the deed to F, the executor; that a writing of defeasance back. Gibson v. Sey- the defendant acquired no right by his deed, as mour, 3 Vt. 565. against the plaintiff; that the action was not 15. An objection that the plaintiff had con- defeated by the devisce's deed to F, since the veyed away his title, is answered by the fact defendant was then in adverse possession; and that such deed was void, under the statute, by that the suit could go on in the name of the reason of an adverse possession. Nason v. administrator de bonis non. Smith v. Hall, 28 Blaisdell, 17 Vt. 216. Vt. 364. 16. Plaintiff's possession. In order to 22. Original proprietor. The plaintiff in maintain ejectment, it is not necessary that the ejectment, on showing himself an original proplaintiff, having title, should ever have been prietor in the town, need not show a division in severalty, unless the defendant shows such water of the pond to supply his trip-hammer an interest as makes him tenant in common shop on his own side of the stream. Held, that with the plaintiff, or shows a separate interest; here was no such disseisin, or wrongful possesbut the plaintiff may recover, against a stranger sion, as would sustain ejectment; that the to the title, his undivided interest, and put the plaintiff's remedy was to remove the dam himdefendant out of the possession of the whole. self. Cooley v Penfield, 1 Vt. 244. Coit v. Wells, 2 Vt. 318. 3. The defendant-his possession; ouster. 4. Joinder of defendants. 31. If the grantee in an absolute deed leaves 23. To recover in ejectment, the plaintiff the grantor in possession, the grantor becomes must prove the defendant in possession at the a quasi tenant of the grantee, a tenant at sufferbringing of the action. Evarts v. Dunton, ance; and both may be joined as defendants in Brayt. 70. Stevens v. Griffith, 3 Vt. 448. ejectment. Patch v. Keeler, 27 Vt. 252. Skinner v. McDaniel, 4 Vt. 418. 32. The plaintiff in ejectment is not obliged 24. In such action commenced in May, the to join the landlord with the tenant in possesdefendant was proved in possession in March sion who holds by a parol lease, or by a written previous. Held, that this was sufficient evi- unrecorded lease, unless it is shown that the dence of possession at the commencement of plaintiff, at the time of the commencement of the suit, where there was no evidence of aban- his suit, had knowledge of the existence of such donment. Chilson v. Buttolph, 12 Vt. 231. lease. Wallace v. Farnsworth, 2 Tyl. 294. 25. To maintain ejectment, there must be Brush v. Cook, Brayt. 89. Paris v. Bartlett, not only a right of possession in the plaintiff, 19 Vt. 639. but a wrongful possession by the defendant 33. The grantee of a mortgagor, where the amounting to a disseisin of the plaintiff. Where mortgagor remains in possession by his consent the possession is by the plaintiff's license or consent, the action will not lie. Chamberlin v. Donahue, 41 Vt. 306. Campbell v. Bateman, 2 Aik. 177. 26. Ejectment does not lie against a mere lodger or boarder with the party in possession. Jones v. Webber, 1 D. Chip. 215. after the law day has expired, may be joined with the mortgagor as defendant in ejectment by the mortgagee, and both are liable for the rents and profits. Warner v. Pate, 5 Vt. 166. 34. The lessee of a mortgagor, who has taken possession under his lease which remains 27. Acts of trespass upon land, by one unexpired, does not free himself from liability claiming title, may be considered acts of posses- to be joined in an action of ejectment upon the sion and an ouster of the true owner, so as to mortgage, by merely leaving the premises, enable him to sustain ejectment. Chilson v. without a surrender of his lease. Collins v. Buttolph, 12 Vt. 231. 14 Vt. 404. 28. It is a sufficient possession in the defendant to sustain an action of ejectment against him, that he has a deed of the land upon record and claims it, though not in actual possession. McDaniels v. Reed, 17 Vt. 674. Gibson, 5 Vt. 243. 35. In ejectment against a mortgagor in possession, the suit will not abate for the nonjoinder of the mortgagee, although the mortgagee, in such case, may properly be joined. Paris v. Bartlett, 19 Vt. 639. 29. In ejectment, it appeared that D was in 36. A joint action of ejectment lies against fact in possession, having previously conveyed all who occupy the premises, though their his right in the premises to the defendant, with occupation be several-as, of different rooms in an agreement that D should retain the use and a house. Each may plead severally as to the occupancy of the land for one year. Held, that part occupied by him, and disclaim as to every D thereby, became the tenant of the defendant, and that the defendant was so in possession, as D's landlord, as to be subject to the action. Hodges v. Gates, 9 Vt. 178. other part, if he does not choose to be responsible for the other defendants. Marshall v. Wood, 5 Vt. 250; and see 13 Vt. 309. 26 Vt. 13. 37. Freehold action. A freehold action 30. The parties owned lands situate upon before a justice to be restored to possession of opposite sides of a stream and extending to the lands leased, under G. S. c. 46, s. 22, is analocenter. The defendant, by permission of the gous to an action of ejectment. The lessee and plaintiff, extended a dam from his side across, his several subtenants may be joined in it as and upon the plaintiff's land, thereby setting defendants, although the lessee is not in actual back the water upon the plaintiff's land. After- possession, and although the subtenants claim, wards the plaintiff requested the defendant to and are in possession of, several and distinct remove the dam, or else take a lease of the land. portions of the premises; and if such defendThe defendant refused to do either, but did not ants sever in their defense, the damages may be thereafter enter upon the premises, nor do any apportioned among them according to their act thereon, though he continued to use the respective possessions, and separate judgments may be rendered therefor. Middlebury College can dispute the title of such person. 5. Declaration. Ames v. 46. Outstanding title. A defendant in ejectment who did not derive his possession from the plaintiff, and claims adversely, may, at any time before trial, purchase in an outstanding title to protect his possession. Tucker v. Keeler, 4 Vt. 161. 38. Description of premises. In ejectment, the premises should be so described in the declaration, that the defendant may be able to ascertain for what he is sued, and that the 47. In ejectment, the defendant may show record of the recovery may enable the plaintiff an outstanding title in a stranger, and such title to point out to the sheriff, who serves the writ may be established by presumptive proof, of possession, the land recovered, and that the although the defendant be in no way conrecord may furnish evidence of the limits to nected with it. Townsend v. Downer, 32 Vt. which the title is established by the judgment. 183. Davis v. Judge, 44 Vt. 500. Clark v. Clark, 7 Vt. 190. 66 48. As against a prior actual possession, not apparently wrongful, a defendant in ejectment 39. Thus, where the premises were described cannot set up an outstanding title in a stranger as bounded south by the defendant's land," unless he connects himself with that title; and (Davis v. Judge); "on the north and west by the rule that the plaintiff in ejectment must the land on which the defendant resides,' recover by the strength of his own title, with(Clark v. Clark)—judgment for the plaintiff out regard to the weakness of the defendant's, was arrested after verdict, because the declara- must be taken subject to this qualification. tion left it uncertain to what extent, or to what Perkins v. Blood, 36 Vt. 273. Hathaway v. limit, the plaintiff claimed. Phelps, 2 Aik. 84. Stevens v. Dewing, Ib. 112. Braintree v. Battles, 6 Vt. 395. Russell v. Brooks, 27 Vt. 640. Stacy v. Bostwick, 48 Vt. 192. 40. A special verdict, in such case, that a certain line indicated on the plaintiff's plan was the true line, was held not to cure the defect, inasmuch as the plan was not incorporated into| the record, and, if it could be, it could not be located on the land. Davis v. Judge. 49. A defendant in ejectment cannot claim that the taking of a lease by the plaintiff from a party to whose title the defendant is a stran41. Where the lands of a town had been ger, was in law an abandonment of the prior surveyed into lots and numbered, though never possessory right of the plaintiff. As to him, legally divided;-Held, in ejectment by an the question is one of fact. Perkins v. Blood. original proprietor, that the land was sufficiently 50. Estoppel. A deed was executed in described by the number of the lot, with parol evidence that the lot bore that name and description. Coit v. Wells, 2 Vt. 318. 42. In ejectment the land was described, after giving the terminus a quo, by courses and distances only, without reference to lot lines, or any ancient survey, or any certain or natural monuments. Held, that the lines must be run according to the direction of the magnetic needle at the time the action was brought. Brooks v. Tyler, 2 Vt. 348; and see 13 Vt. 263. 43. Amendment. An amendment of the statutory form of a declaration in ejectment, by adding an allegation of special damage done to the premises, is allowable, in the discretion of the court. Lippett v. Kelley, 46 Vt. 516. 6. Defense. 1819, but retained subject to the control of the 7. Extent of recovery. 44. Abatement. The non-joinder of the 51. As to interest and quantity. In landlord, with the tenant as defendant in eject- ejectment the plaintiff recovers according to ment, can only be taken advantage of within the his right, though it be less than he declares rules applicable to pleas in abatement. Wallace for ;-thus, he may sue for a whole lot, and v. Farnsworth, 2 Tyl. 294. Tucker v. Starks, recover a less quantity; may declare for an Brayt. 191. estate in fee, and recover against a stranger a 45. Common source of title. Where both term of years; may declare for an interest in parties claim title from the same person, neither severalty, and recover the share of a tenant in common. Evarts v. Dunton, Brayt. 67. Chapin be adopted, if M had suffered judgment by v. Scott, N. Chip. 33. 1 D. Chip. 41. default, or disclaimed title as soon as he aban 52. The plaintiff in ejectment declared for doned possession-quære. Lamson v. Sutherand recovered a fee, upon proof of an estate for land, 13 Vt. 309. 20 Vt. 269. 999 years. The court refused to set aside the verdict. Rood v. Willard, Brayt. 67. 59. In ejectment against landlord and tenant, and a joint verdict, damages cannot be assessed, embracing rents and profits which accrued before the entry of the tenant. Edger 53. Damages Mesne profits. The claim for mesne profits, after judgment for the plaintiff in ejectment, is local in this State, in New ton v. Clark, 20 Vt. 264. Hampshire and at common law. Burgess V. 60. In ejectment against mortgagor and Gates, 20 Vt. 326. mortgagee, the mortgagee will not be answer54. In ejectment, under the statutory form able for rents and profits unless he has received of declaration, the plaintiff recovers, as dam- them; and if the defendants plead severally, as ages, mesne profits derived only from the use they may, judgment for damages may be renand occupancy of the land, and not for such dered against the mortgagor alone. Marvin v. acts of trespass as arose from the wanton mis- Dennison (U. S. C. C.), 20 Vt. 662. conduct of the defendant. Hence, a judgment in ejectment is not a bar to an action of trespass for such acts committed while the action of ejectment was pending. Walker v. Hitchcock, 19 Vt. 634. 55. The plaintiff in ejectment may recover, in addition to mesne profits, all damage done by the defendant to the premises while he was wrongfully in possession, provided such damage is specially declared for; and such profits and special damage may be reckoned from the time of actual ouster, although that was before the date laid in the declaration. Lippett v. Kelley, 46 Vt. 516. 56. On default in ejectment for lands held by levy of execution against the defendant, mesne profits, as damages, are to be computed from the date of the levy. Little v. Meachum, 1 Tyl. 438. 8. Effect of judgment. 61. To settle title. A general verdict in ejectment is conclusive of the title, as between the parties, according to the statute; hence, where the plaintiff is entitled to recover but a special interest, the verdict should be special, describing the interest recovered. Warren v. Henshaw, 2 Aik. 141. 62. The object of the action of ejectment in this State is not merely to recover the possession of lands, but to settle the title and establish the right of property thereto; and the judgment is, as between the parties, conclusive evidence of that title. Marvin v. Dennison, 20 Vt. 662. Hunt v. Payne, 29 Vt. 172. 63. A recovery in ejectment by an executor or administrator against the devisees or heirs of the estate, is conclusive as to his title, and also in behalf of an administrator de bonis non succeeding him, unless it appear that the devisees or heirs have acquired a right in the premises 57. Where there are several defendants. In ejectment against several, as against a landlord and sundry tenants holding under him, the plaintiff may recover, as damages, the rents of the whole premises against all the defendants, subsequent to such recovery. Hunt v. Payne. although they may have severally held only distinct parts of the premises in severalty, unless they separate in their defense by a disclaimer under the statute. Wires v. Nelson, 26 Vt. 13; and see Lamson v. Sutherland, 13 Vt. 309. Rood v. Willard, Brayt. 67. Marshall v. Wood, 5 Vt. 250. 64. One who unsuccessfully defends an action of ejectment brought against another who claims the land as his, is not necessarily concluded by the judgment in that case from again contesting that plaintiff's title ;-as was allowed in this case in chancery. Clark v. Lyman, 8 Vt. 290. 58. In ejectment against S and M, where M 65. The prima facie effect of a judgment was in possession as tenant of S, judgment may be qualified, even in ejectment, by showpassed against both, and they reviewed, and ing by parol that the title was not in fact litithereafter the suit was delayed, for some years, gated; or by showing that the judgment was by an injunction from chancery procured by S, against the plaintiff, not on the title, but because and finally judgment passed against both by he did not prove that the defendant was in posnil dicit, when, on the assessment of damages, session; or because the defendant showed a their relative situation to each other was dis- temporary estate or right in himself, which has closed, and it appeared that M had remained in since expired. Collamer, J., in Parks v. Moore, possession only part of one season after the 13 Vt. 183. commencement of the suit. Held, that the 66. The defendant in ejectment pleaded in plaintiff was entitled to recover rents and bar a former recovery in ejectment by his land profits, as damages, against both jointly, for lord against the plaintiff, alleging it to have been the full time he had been kept out of possession. for the same land,--and this was traversed. Whether a different rule could, or could not, Held, that the evidence must be confined to the |