AUSTIN et ux.
v.
HALLSTROM.
No. 477.
Supreme Court of Vermont. Essex.
February 5, 1952.Ernest E. Goodrich, St. Johnsbury, for plaintiffs.
Witters, Longmoore & Akley, St. Johnsbury, for defendant.
Before SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ., and CHASE, Superior Judge.
CLEARY, Justice.
The plaintiffs' writ states that this is "An Action of Trespass on the Freehold-Quare Clausum Fregit, vi et armis." The defendant's answer is a general denial and justification. During the trial the plaintiffs moved to amend their action by making Helen M. Austin a party plaintiff. The plaintiffs also moved that the defendant be required to elect upon which of his inconsistent defenses he was going to rely. The case is here on the plaintiffs' exceptions to the denial of both motions.
The plaintiffs base their title to the property concerned on a warranty deed to them from Helen M. Austin which contains the following paragraph: "Excepting, however from the operation and effect hereof to me, the said Helen M. Austin, the right to have, use, occupy, manage and control all of the above described real property for so long as I shall live." The plaintiffs, in their brief, construe the interest of Helen M. Austin in the real estate as that of a life tenant and that of the plaintiffs as vested remaindermen.
The gist of the action of trespass upon the freehold is the injury to the possession. Ripley v. Yale, 16 Vt. 257, 260; Humphrey v. Twin State Co., 100 Vt. 414, 418, 139 A. 440, 56 A.L.R. 1011. It did not appear that the plaintiffs here were in possession or had the right of immediate possession of the premises at the time the injury was committed. So their action cannot be supported. Catlin v. Hayden, 1 Vt. 375, 382; Bakersfield Religious Congregational Soc. v. Baker, 15 Vt. 119, 128; Oatman *550 v. Fowler, 43 Vt. 462, 464; Paine v. Hutchins, 49 Vt. 314, 317; Huntly v. Houghton, 85 Vt. 200, 204, 205, 81 A. 452, and cases cited.
A remainderman has no right of possession until the particular estate is terminated and so cannot maintain an action of trespass on the freehold. 33 Am. Jur. 643; 52 Am.Jur. 860; 31 C.J.S., Estates, §§ 38, 85, 98, pp. 46, 97, 98, 99, 114; McClain v. Todd's Heirs, 5 J.J.Marsh., Ky., 335, 22 Am.Dec. 37, 39; Cannon v. Hatcher, 1 Hill, S.C., 260, 26 Am.Dec. 177; Cherry v. Lake Drummond Co., 140 N.C. 422, 53 S.E. 138, 111 Am.St.Rep. 850, 851; Bohrer v. Davis, 94 Neb. 367, 143 N.W. 209, L.R.A.1918D, 430, Ann.Cas.1915A, 992, 993. But a life tenant can do so. Weston v. Gravlin, 49 Vt. 507, 511; 52 Am.Jur. 860; Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A.,N.S., 663, 123 Am.St.Rep. 58, 66.
The rights of a life tenant and those of a remainderman are wholly distinct and separate. Higgins v. Farnsworth, 48 Vt. 512, 514, 515.
The amendment asked for would change the parties and introduce a new cause of action. It would, in effect, substitute a plaintiff who could maintain trespass on the freehold for plaintiffs who cannot maintain this action. Such an amendment cannot be allowed and the court properly denied the motion to amend. Emerson v. Wilson, 11 Vt. 357, 360; Holt v. Thacher, 52 Vt. 592, 594; Brooks v. Ulanet, 116 Vt. 49, 52, 53, 68 A.2d 701.
The plaintiffs insist that the defendant be required to elect on which defense he relies because his answer contains inconsistent defenses. Defenses are inconsistent only when they cannot both be true, and the proof of one necessarily proves the falsity of the other. Doubleday v. Town of Stockbridge, 109 Vt. 167, 170, 194 A. 462; Bradley v. Blandin, 92 Vt. 313, 315, 104 A. 11; McKinstry v. Collins, 74 Vt. 147, 156, 52 A. 438. Neither element of inconsistency exists here because the answer first denies the trespass and then alleges that the defendant's acts were lawful and done in a lawful manner. All could be true and proof of one would not necessarily prove the falsity of the others. It follows that there was no error in the ruling of the court refusing to require the defendant to elect. McKinstry v. Collins, 74 Vt. 147, 156, 52 A. 438; Johansson v. Granite Savings Bank & Trust Co., 114 Vt. 336, 342, 44 A.2d 542.
The case was passed here before final judgment under V.S. 47, § 2124. The rulings denying the plaintiffs' motions are affirmed and the cause remanded.