USA > Vermont > The Vermont lease lands > Part 13
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Thus, in less than a decade, in a series of five cases, the court had
23. 2 Vt. 14 (1829).
24. 1 D. Chip. 369 (1821).
25. Lampson v. New Haven, 2 Vt. 14, 19 (1829).
26. This inference is inescapable inasmuch as the court had declared void the attempted conveyance.
27. 2 Vt. 411 (1830).
28. 1 Vt. 303 (1828).
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made its position firm. However, in 1835 the court in Maidstone v. Stevens,29 ejectment for a school lot, clouded the matter somewhat by saying that non-payment of rent is a breach of a condition subsequent, and does not in itself divest the estate. The issue in the case, however, was not the nature of the lease, but was on the constitutionality of the statute of 181830 which provided certain changes in the action of eject- ment. On the other hand, Strong v. Garfield again clearly accepted such leases as being leases. The case was between private parties respecting assignment of a lease originally granted by the University, and the court used the words: ". . . but in an assignment merely of a leasehold estate."31 This case has the added interest of being the first pronounce- ment respecting lease lands of classes other than those controlled by town selectmen.
In 1839 the court added its recognition of durable leases to still an- other category of public lands in Caledonia County Grammar School v. Burt,32 a case primarily concerned with impairment of the obligation of contract. The position of the University was reinforced with respect to durable leases soon after in Keith v. Day.38 The case was one between private parties for recovery of damages on covenant in warranty deed as a result of ejectment proceedings in county court by the University for non-payment of rent. Notwithstanding the series of warranty deeds34 which various individuals had passed, the superior title of the University was recognized.
After a lapse of fifteen years, the court again had occasion to speak respecting durable leases of ordinary realty in Smith v. Blaisdell,35 and the old distinction was maintained. The lease was treated as conveyance of a fee upon condition, and the lessor was held strictly to the require- ments of the common law of such instruments.
A quite broad application of the accepted doctrine is found in Con- gregational Society of Newport v. Walker. The matter was ejectment, and the land had been set to the right of the first settled minister. The Society showed no evidence of title except the lease, and the court held that this was sufficient: "As far as anything appears, the land may have
29. 7 Vt. 487.
30. Laws of Vermont (1824 compilation), ch. 7, no. 31, sec. 2.
31. 10 Vt. 497, 501 (1838).
32. 11 Vt. 632.
33. 15 Vt. 660 (1843).
34. See supra, p. 87, n. 49, for description of these transactions.
35. 17 Vt. 199 (1845).
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been vested in a minister, duly settled, who has conveyed to the plain- tiffs, and so have been appropriated to the use for which it was granted."36
University of Vermont v. Joslyn,37 an action of covenant for pay- ment of lease rent, should be noticed in passing as another tacit accept- ance of durable leases. The case chiefly involved consideration of the matter of adverse possession and was largely argued on procedural questions. So, also, with Orleans County Grammar School v. Parker.38 This case turned on problems respecting obligation of contract resulting from actions of the legislature. But in the course of the opinion, the court accepted the durable lease in question and applied the law of land- lord and tenant.
S. P. G. lands are added to those considered by the Vermont court in Propagation Society v. Sharon,39 but the S. P. G. did not fare well, losing claim to the land at issue as a result of adverse possession main- tained during those years in which the legislature removed such protec- tion from the S. P. G. rights. The case is of interest here because it reiterated the position taken in Bush v. Whitney40 and Lampson v. New Haven41 that a fee passed if a durable lease failed to reserve an annual rent and right of re-entry, thereby implicitly accepting, for the S. P. G. leases, the established doctrine.
White v. Fuller42 had at issue county grammar school and town school lots in the Town of Belvidere. It is a case rich in dicta respecting lease lands and has been much cited by the court. It will, accordingly, appear under several topical examinations. Among other propositions the court was emphatic respecting durable leases of public lands :
We find in each [of the leases at issue] apt words for a lease, creating a tenancy with specific rights and duties as between the parties, reserving a substantial and adequate rent payable annu- ally during the whole term of the holding, and authorizing a re- entry for the non-payment of the rent or the non-performance of the conditions.48
The court went on to point out that in Arms v. Burt,44 Stevens v. Dew-
36. 18 Vt. 600, 602 (1846).
37. 21 Vt. 52 (1848).
38. 25 Vt. 696 (1853).
39. 28 Vt. 603 (1856).
40. 1 D. Chip. 369 (1821), supra, p. 106.
41. 2 Vt. 14 (1829), supra, p. 107.
42. 38 Vt. 193 (1865).
43. Ibid., p. 205.
44. 1 Vt. 303 (1828).
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ing45 and Propagation Society v. Sharon,46 the trouble with the leases was that they lacked these qualities.47
. leases of short duration tend to discourage agricultural ยท enterprise and improvement, and, in the case of wild lands, are wholly impracticable, and we are satisfied that the legislature in conferring the authority to 'lease' such lands had reference to the meaning of that word according to its popular use rather than to its strict technical definition.48
And again :
We have been unable to find any case in which a lease creat- ing a tenancy and reserving an adequate annual rent, with a right of re-entry on the non-payment of the rent or non-perform- ance of other conditions, has been adjudged to be void on account of being perpetual in its duration.49
Currier v. Rosebrooks and Town of Brighton50 was between rival lessees of a school lot. The case was in chancery. The court simply de- fined the relationships of the parties to show that any action should be at law and then dismissed the bill without prejudice. Nothing was said in the opinion contrary to the developed doctrine respecting leases.
Lemington v. Stevens,51 assumpsit for recovery of stumpage, was a somewhat involved case on various counts. As to durable leases, it has one element of interest. The selectmen had granted a single lease of all the town-controlled public rights for "as long as wood grows and water runs, or as we the selectmen have a right to lease the same." At that time, legislation limited leases on unsettled minister lots to five-year terms.52 The court held the lease valid and that the limiting alternative term had reference to the minister lot only.
45. 2 Vt. 411 (1830).
46. 28 Vt. 603 (1856).
47. This would appear to be an inadvisable use by the court of the first two of these cases. They did not involve public lands and had been treated by the earlier court as simple common law problems.
48. 38 Vt. 193, 206 (1865). This statement is consequential as introducing an argument in favor of durable leases of the public lands which has since then ap- pealed to the sentiment of the court. The statement also illustrates what was said earlier of the court's propensity for acceding to the requirements of primitive so- cial conditions.
49. Ibid.
50. 48 Vt. 34 (1875).
51. 48 Vt. 38 (1875).
52. General Statutes (1863), ch. 27, sec. 3.
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Jamaica v. Hart,53 ejectment for non-payment of rent, again sup- ported the prevailing doctrine and has two specific points of interest. The first is the court's ruling that under provisions of General Statutes, Chapter 40, section 14, action of ejectment could lie without re-entry, or without a demand for the rent. The other point shows how far the court had gone by now in supporting durable leases of public lands. The lot at issue had been set to the grammar school right. In the absence of an established grammar school in Windham County, the legislature had in 182354 appropriated the right in Jamaica to the benefit of common schools in that town, and the selectmen had granted the lease in ques- tion under that act. The court regarded defendant as tenant of the town and avoided a ruling on the constitutionality of the act of 1823.55 Wil- lard v. Benton56 accepted durable leases (it was another case of rival lessees), but in this case the court returned to the common law require- ments as to demand of rent due and re-entry.57
Franklin County Grammar School v. Bailey,58 ejectment for non- payment of rent, will be more fully examined later as it was essentially a problem of obligation of contract resulting from a legislative attempt to redistribute certain lands. However, the apparent issue was the validity of a lease, and the court upheld the rights of the school as against the lessee.59
53. 52 Vt. 549 (1880).
54. Laws of Vermont, 1822-1826, 1823, p. 10.
55. This is worthy of notice because the charter of Jamaica reserved "One share or right for the use of the County grammar Schools throughout this State." Vermont State Papers, II, 106. In Caledonia County Grammar School v. Burt, 11 Vt. 632 (1839), the decision had turned on this same phraseology of the grant of the grammar school right, and the court had held the legislature strictly to it, so distinguishing between that case and the earlier litigation in Orange County Gram- mar School v. Dodge, Brayt. 223 (1817).
56. 57 Vt. 286 (1884).
57. Interestingly, both Jamaica v. Hart, 52 Vt. 549 (1880), and Willard v. Benton, 57 Vt. 286 (1884), cited Maidstone v. Stevens, 7 Vt. 487 (1835), as au- thority !
58. 62 Vt. 467 (1889).
59. An exception might be taken here to the remark supra, p. 105 that Judge Moulton is the only recorded dissenter to the doctrine under consideration. In the report of the Franklin School case, ibid., p. 480, the Reporter appended the follow- ing footnote :
This case was argued at the January Term, 1889, Franklin County, and was assigned to Ross, J., who then wrote the above opinion which was not concurred in by all the sitting judges. It was re-argued at the General Term, 1889, when the opinion was adopted by a majority of the court. [Royce, Ch. J. and Powers, J. dissented.]
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Between this and the next case involving public lands, the court wrote opinions on several lease cases which involved private parties and ordi- nary realty. Derrick v. Luddy60 and In re Willard Fuller's Estate61 merit attention because they both turned on leases of the "as long as grass grows and water runs" type. The former case also has the noticeable parallel circumstance for the public land cases in that the leased prop- erty had passed through several conveyances. It was found that the court continued to adhere to the early position respecting durable leases of other than public lands, as conveying a fee, but something less than a fee simple absolute. (In Derrick v. Luddy the lessor's recovery of un- paid rent was upheld.) And in the Fuller case the court held that such a lease "conveyed a fee in the use of land, liable to be defeated by the failure of the lessee to perform his covenants."62 Rickard v. Dana63 is noteworthy because the court made clear the status of leases as to as- signability, in such a way as to fortify durable leases generally. The opinion stated strongly that a lease which contains no provision against assigning or sub-letting is assignable, though it runs to the lessee with- out mention of his heirs or assigns.
Churchill v. Capen64 is of interest as indicating how thoroughly ac- cepted had become the doctrine respecting durable leases of public lands. It was a plea in chancery for reformation of an instrument, and most of the opinion is not relevant here, dealing with the principles of refor- mations. The Churchills held a perpetual lease on the lot in issue-a school lot located in Goshen but belonging to Chittenden as the latter town was reversioner and payee of the eight dollars annual rent. The Churchills conveyed the land to Capen on an ordinary printed form of warranty deed. They alleged that on that form they inserted a state- ment covering the leasehold status and the rent payable annually ; that Capen later erased this portion of the instrument and then recorded the altered deed in the town clerk's office in Goshen; then, later, sued the
Inasmuch as the principal question in the opinion was on the status of the original grant and whether it constituted an irrevocable executed grant under the Dart- mouth College v. Woodward, 4 Wheaton 518 (1819), and Fletcher v. Peck, 6 Cranch 87 (1810), doctrine, it has been assumed here that such was the basis for these dissents, rather than the question of the nature of durable leases. No dissenting opinion was written.
60. 64 Vt. 462 (1892). 61. 71 Vt. 73 (1898). 62. Ibid., p. 76. 63. 74 Vt. 74 (1901). 64. 84 Vt. 104 (1911).
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Churchills for breach of covenants of seizin as of fee, against incum- brance and of warranty. The basis of the prayer was that such reforma- tion provided the Churchills their only adequate defense in the law suit.65
Huntley v. Houghton66 was essentially a case of construction of a deed as to boundaries of the land : a case in trespass. However, the land, which had been conveyed by deeds, mortgaged, foreclosed, and then deeded by the foreclosing bank, lay under original leases from the Lon- donderry Grammar School, and the court casually accepted these leases, in the course of interpreting data on which to construe the later deeds. The school does not otherwise appear in the case.
The last two cases have been considered somewhat out of chrono- logical sequence, in order to clean up that period, before examining a group of three related cases, among which the two were sandwiched in point of time.
The three cases now to be reviewed are parts of a single litigation which extended over a decade: Caledonia County Grammar School v. Kent in 1910,67 the same case in 1912,68 and Powers and Peck, admr. for Judevine v. Caledonia County Grammar School in 1919.69 The liti- gation, particularly the third case, is prominent in any consideration, in Vermont, of the lease lands, partly because it occurred relatively re- cently, partly because of the extreme effort made by the litigants, and partly because of the strong position taken by the court. Indeed, the opinions, and especially the last one, are so positive that it seems strange that the Ward Case70 should have been necessary.71
The first case is not of extensive interest at this point. It will be
65. This situation also provides a nice illustration of the way in which lease lands can become obscured through changes in town lines and consequent shifting of jurisdiction. The Goshen authorities would have had no interest in the correct status of the lot : as lease land it would be exempt from Goshen taxes, and the lease rent accrued to the advantage of a different town.
66. 85 Vt. 200 (1911).
67. 84 Vt. 1.
68. 86 Vt. 151.
69. 93 Vt. 220. This case is customarily referred to as "the Judevine Case" and will be so designated herein.
70. University of Vermont v. Ward, 104 Vt. 239 (1932).
71. A sidelight worthy of brief notice is that in all three cases the county court was adverse to the interest of the grammar school, while in each case the Supreme Court reversed and favored the school. This relationship is noticeable as having occurred from time to time in other cases involving various of the public rights.
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examined under other topics, such as adverse possession, titles by prescription, obligation of contract, etc. For the time being, it is chiefly useful for its narration of the background of the litigation. The action was a suit in ejectment for lot number 10 in range 18 in the Town of Hardwick. The town was chartered in 1781 to 67 proprietors, plus the customary five public shares.72 The grammar school, located in the Town of Peacham, was chartered in 1795. The charter provided that the school should hold and lease the appropriate public lands.73 Hardwick was laid out in three divisions of six ranges each, each range having twelve lots. Each proprietor and public right was assigned one lot in each division. The grammar school leased its second division lot in 1797 and its first division lot in 1813, but never leased any lot in the third division.
the lot in question was near the corners of Hardwick, Greensboro, and Wolcott, on a mountain more than four miles from any village, and not easily accessible . . . no one ever settled on it; and no evidence of occupation [appears] until around 1900 when executor of Judevine sold the timber and it was then stripped. . . . Plaintiff conceded its trustees had no knowledge of its right to the lot in question until 1908 or early in 1909, and had no knowledge that former boards of trustees knew about its right thereto. The plaintiff claimed that its grant was of a whole right, and that this right included a lot in each division. . 74
(An interesting sidelight on this is that all lots in the third division had been assigned and taken over by proprietors and the other public rights beneficiaries, except for this one lot.) Kent, the defendant, claimed un- der a deed from Howard in 1905, who had it by will from Alden E. Judevine.
The second case came to the Supreme Court following the county court action resulting from the remand order in the first case. Here it would appear that the defendant had in the meantime discovered evi- dence of a lease from an early board of trustees to Holton and Judevine, not presented in the earlier trial. From the opinion :
The defendant's evidence tended to show that by a perpetual lease the plaintiff leased the lot in question to her grantors Holton
72. Vermont State Papers, II, 91.
73. Laws of Vermont, 1794-1796, 1795, pp. 12-14.
74. 84 Vt. 1, 7 (1910).
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and Judevine as early as 1847, and that they paid for such lease one hundred dollars as commuted rent. The [county] court in- structed the jury to consider . . whether the one hundred dol- lars, the payment of which defendant's evidence tended to show, was applied on this grammar school lot under such contract. Construing that question and the affirmative answer thereto in the light of the charge, the finding is, that the defendant holds possession of the lot in dispute under and by virtue of a perpetual lease from the plaintiff to the defendant's grantors, one hundred dollars being paid by the latter therefor in lieu of successive pay- ments of rent at the end of regular stated periods during all future time. The plaintiff contends, that such a contract was not a lease within its power to execute ; but was an ineffectual sale of the land and void.75
Still more information is available on the history of the situation in the opinion in the Judevine Case, the third and last of the efforts in this litigation :
The ejectment case being remanded to the county court for the assessment of damages, the bill in the present case was filed by the executors of Judevine's estate, and H. H. Powers and S. Blanche Kent, seeking to compel the Grammar School to execute such a conveyance as it had a right to make as of the date when the attempted conveyance was made, so that, as far as legally may be, the contract entered into more than half a century ago and alleged to have been acted upon in good faith during such long period of time, may be effectuated ; also praying for other and for general relief. . . . The lot in question , is found to contain 70 acres of land. Holton and Judevine went into the pos- session of the land at the time of receiving the attempted convey- ance in controversy, thence continuing until 1867, when Holton sold his interest to Judevine who continued in possession down to his death in February, 1888 . . the executors of Jude- .
vine's estate continued in possession until 1894 or 1895, when they sold the stumpage thereon to George T. Howard, and in 1905 they sold the fee to Howard. Later the latter, by warranty deed, conveyed an undivided third part of the same to the plaintiff Kent . . it appeared in evidence that in 1848 the Grammar School attempted to lease the lot in question to Holton and Jude- vine . . . that Holton and Judevine paid one hundred dollars as rent for all time, and that this payment was completed on Feb- ruary 20, 1852; that perpetual leases with commuted rent were made by the said trustees in other cases, both grantors and grantees believing that they had a right so as to contract. 76 .
75. 86 Vt. 151, 155 (1912).
76. 93 Vt. 220, 227-228, 230 (1919).
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The narrative of the situation has been related at this length to point up the significance of the decisions and the court's position, ex- pressed in the opinions. It can be seen that the grammar school had little to offer in extenuation. It had been negligent in the first place in its conveyance, it had very evidently been careless with its records, and it had allowed a long period of time to elapse during which no care of its land is evidenced. And yet, in every respect, the court found in favor of the school, or, at least, in support of the purpose of the school and the school lands grant. Moreover, it is apparent that the court felt strongly-the second and third opinions, particularly, are written in vigorous terms. Finally, in the third case, the court declared the decree in detail, and the assessments against the opponents of the school were severe.
The opinion in the second of the cases at law dealt at length with durable leases of the public lands :
It [the grammar school] was not authorized or empowered to convey the fee, nor the whole interest and estate of the County Grammar School therein. By the express terms of the grant the plaintiff was to hold the lands, as well as to lease them. The question then is, what was the legal effect of the so-called per- petual lease to Holton and Judevine in consideration of the pay- ment by them of a single sum as the rent for all future time? it is essential to a lease, that there be a reservation of a reversion in the grantor; for if the whole estate and interest which the grantor has, be parted with, the instrument is not a lease, but an assignment . , it is clear, that the so-called perpetual lease from the plaintiff to Holton and Judevine, instead of being a lease, was in law an attempted conveyance in fee, and as a conveyance of such public lands it was void.77
The following is an interesting exposition of the breadth of the protection which the court had by then spread over the public rights :
It is argued, however, that inasmuch as the plaintiff, by its charter, was authorized 'to hold and lease' the Grammar School lands in the several towns in the county, without any expressed restriction on the power to lease, either as to length of term or amount and kind of rent, a general power is given to be exercised in the discretion of the grantee of the power. It is true, that there is no provision in the plaintiff's charter nor by statute expressly specifying the term for which the Grammar School lands may be
77. 86 Vt. 151, 156 (1912).
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leased, and it was held in White v. Fuller, 38 Vt. 193 (1865), that a lease of such lands, reserving an annual rent, with a right of re-entry on the non-payment of the rent or non-performance of other conditions, was not, because perpetual in duration, out- side the lessor's authority by statute to execute. It is also true, that neither the charter nor the statute in express terms requires the reservation of annual rent. Yet it is not to be supposed that the Legislature intended the execution by the trustees of such leases or pretended leases as should defeat the main object of the grant. The use and purpose for which such lands were to be held and leased show, that the grant contemplated that they be so leased as to result in a yearly income therefrom for use in the support of the County Grammar School. Such income could be realized only by a reservation of rent payable annually, and we think it manifest from the whole act that this was intended by the Legislature. . . . At no time did the plaintiff, through its trustees, have a right to anticipate the future rents, or, in contemplation thereof, as we have seen, sell the lands and receive the pay there- for, to the injury of future generations equally entitled to the benefit of the use.78
The tone of the Judevine opinion gives the impression that the court had lost patience with the whole business :
The Grammar School holds the land subject directly to a trust in the form of a power, and equity will not allow the cor- poration to deal with the estate in a manner inconsistent with the trust. . . . Since the power of the Grammar School, as to con- veying the property is limited in the manner and purpose as stated above, the attempted conveyance in fee, established in the action of ejectment, was an act in destruction of, and a fraud on, the power, and instead of a court of equity giving sanction thereto, it will leave the plaintiffs to their remedy at law. . . . 'No point is better established than that a person having a power must execute it bona fide for the end designed, otherwise it is corrupt and void.'79
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