County courts.

Rule to county courts, made by superior judges under statute, has force of law, and while it stands must be applied to all cases that come within it, regardless of any rule of practice adopted by bar of particular county. Davis v. Dunn, 90 Vt. 253, 98 A. 81, 1916 Vt. LEXIS 270 (1916).

Municipal courts.

General rule that objections or exceptions to instructions shall be made at the conclusion of charge and before case is finally given to jury applies to municipal courts in absence of specific municipal court rule to contrary. State v. Jacques, 121 Vt. 129, 149 A.2d 358, 1959 Vt. LEXIS 98 (1959).

Probate.

Rules of probate court adopted under authority of statute have force of law and are to be judicially noticed. In re Estate of Moody, 115 Vt. 1, 49 A.2d 562, 1946 Vt. LEXIS 71 (1946), cert. denied, 331 U.S. 814, 67 S. Ct. 1201, 91 L. Ed. 1833, 1947 U.S. LEXIS 2388 (1947).

Supreme Court.

Rules of Supreme Court have force of law, and although Court can alter or abrogate such rules, yet while they stand they must be enforced as to all cases within their scope. Taft v. Taft, 82 Vt. 64, 71 A. 831 (1909), same case 80 Vt. 256, 67 A. 703.

I. INTEREST GENERALLY.

Attorney.

This section by implication prohibits judge of county court from accepting retainer or acting as attorney or counsel in bringing or managing in such court any suit in which he has no personal interest, during his term of office. Cady v. Lang, 95 Vt. 287, 115 A. 140, 1921 Vt. LEXIS 212 (1921).

Judge of court of insolvency was not precluded from passing on claim consisting of judgment of common law court, by reason of fact that he acted as counsel for claimant in procuring that judgment; nor was he disqualified by reason of fact that judgment was partially secured by attachment, where it did not appear that he acted as counsel in respect to attachment or passed on its validity as judge. Clemons v. Clemons, 69 Vt. 545, 38 A. 314 (1897), same case 68 Vt. 77, 34 A. 34, 39 A.L.R. 459.

Since authorization of indifferent person to serve citation upon party to be present at taking of deposition, was judicial act, such authorization by magistrate, who was counsel for one of parties, was invalid. St. Johnsbury v. Goodenough, 44 Vt. 662, 1871 Vt. LEXIS 111 (1871).

When attorney made writ, signed it as justice of peace and took recognizance for costs, this was a judicial act which rendered process abatable. Ingraham v. Leland, 19 Vt. 304, 1847 Vt. LEXIS 31 (1847).

Since there was no distinction between being “of counsel” and “attorney” in case, plea in abatement was sufficient if it alleged that magistrate who signed writ “was then and there an attorney of record in said suit.” Ingraham v. Leland, 19 Vt. 304, 1847 Vt. LEXIS 31 (1847).

Allegation that justice was “lawfully appointed agent of the town of B., to prosecute and defend suits in which said town was interested,” was insufficient, on demurrer, to bring case within provision of statute which prohibits a justice from taking “cognizance of any cause, or doing any judicial act, when he shall have been of counsel.” Pierce v. Butler, 16 Vt. 101, 1844 Vt. LEXIS 20 (1844).

Bias or prejudice.

Bias and prejudice of a trial judge must be clearly and affirmatively shown. In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973).

Bias or prejudice as ground for disqualification of judge, see annotations under Vermont constitution, ch. II, § 28.

Burden of proof.

Vermont Labor Relations Board acted correctly in denying grievant’s motion to recuse a member where she did not achieve her burden of establishing the grounds for recusal. McIsaac v. Univ. of Vt., 2004 VT 50, 177 Vt. 16, 853 A.2d 77, 2004 Vt. LEXIS 167 (2004).

Duty of court.

If a court feels he would be unable to maintain a scrupulous detachment in the trial of a case, he should make this known at once, and withdraw from the case. Siebert v. Siebert, 124 Vt. 187, 200 A.2d 258, 1964 Vt. LEXIS 81 (1964).

Incompatible functions.

Evidence and findings amply supported conclusion that claim that trial judge who as attorney general had, more than ten years previous, made an argument in a post-conviction proceeding brought by petitioner, and had had petitioner before him as a litigant at one time, and testified in federal court relating to prosecutions of petitioner, was biased and prejudiced against petitioner was unfounded by the evidence; and claim was unfounded in law as well. In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973).

Environmental board’s initiation of action in superior court to enjoin violations of Act 250 permit and its continuation of hearing on petition to revoke the permit did not violate subsection (a) of this section, requiring disqualification of person acting in judicial capacity; mere combination of functions did not make board “interested” and therefore disqualified to act on petition for revocation. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988).

Fact that assistant judges of county court were members of prison board by which respondent was required to labor without jail walls, did not disqualify them to sit in trial of respondent for escape while so employed. State v. Wright, 81 Vt. 281, 69 A. 761, 1908 Vt. LEXIS 143 (1908).

Justice of peace could issue warrant to collect tax which was to be paid to board of selectmen to which he belonged, issuance of warrant being merely ministerial and he having no personal or private interest in tax. Alger v. Curry, 40 Vt. 437 (1868), same case 38 Vt. 382.

Justice of peace was not legally disqualified to take jurisdiction of and try case for reason that he has previously, as one of board of arbitrators between same parties and in reference to subject matter of suit, formed an opinion and expressed it to his associate arbitrator. Batchelder v. Nourse, 35 Vt. 642, 1863 Vt. LEXIS 28 (1863).

Justice of peace who had acted as grand juror in prosecuting for an offense before justice of peace was incompetent to try a civil action brought to recover redress for supposed criminal act. Freelove v. Smith, 9 Vt. 180, 1837 Vt. LEXIS 19 (1837).

Interest in event of suit generally.

Fact that writ returnable to county court was signed by justice of peace who was interested in event of suit was no ground of abatement. Graham v. Todd, 9 Vt. 166, 1837 Vt. LEXIS 15 (1837).

Justice of peace had no authority to render judgment by confession if he was interested in demand on which judgment was rendered. Bates v. Thompson, 2 D. Chip. 96 (Vt. July 1, 1824).

It was good cause of challenge to petit juror, that he had been recognized for costs of prosecution in suit, though he had been discharged from his recognizance. Phelps v. Hall, 2 Tyl. 401 (1803), same case 2 Tyler 399.

To work judicial disqualification, interest must be proprietary or such that affects personal rights of judge as an individual, and in absence of an express statutory prohibition, remote interest does not disqualify. Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875, 1959 Vt. LEXIS 90 (1959).

Officers and directors.

Where a member of administrative tribunal was a member of the governing board of a petitioner before the tribunal and the chairman of the tribunal had contributed to the petitioning organization, the member was disqualified to act, as was the chairman if his contributions or feeling were sufficient to give him an interest in the event. In re State Aid Highway No. 1, Peru, Vt., 133 Vt. 4, 328 A.2d 667, 1974 Vt. LEXIS 275 (1974).

Procedure.

Where each of two members of administrative tribunal was possibly disqualifiable, objection to one was waived, the record did not show which one, and there was no indication in the findings and conclusions as to which members participated in the decision, proper practice was not followed. In re State Aid Highway No. 1, Peru, Vt., 133 Vt. 4, 328 A.2d 667, 1974 Vt. LEXIS 275 (1974).

Stockholder or policy holder.

Since enactment of subsec. (g), is it not permitted in automobile negligence case to inquire of juryman on voir dire whether he is insured in a certain named mutual insurance company. Glass v. Bosworth, 113 Vt. 303, 34 A.2d 113, 1943 Vt. LEXIS 173 (1943).

Taxpayer or resident.

While in criminal cases, any justice of county had jurisdiction, though penalty or fine might go to treasury of town of which such justice was rated inhabitant, in civil cases, if any part of debt or avails of action went into town treasury, such justice did not have jurisdiction. Waters v. Day, 10 Vt. 487, 1838 Vt. LEXIS 92 (1838).

Since justice of peace, acting under statutes relating to appraisal of damages from grading of a highway, was required to perform judicial functions, justice who was taxpayer of town concerned was disqualified from so acting on ground of interest. Fairbanks v. Town of Rockingham, 72 Vt. 419, 48 A. 654, 1900 Vt. LEXIS 159 (1900).

Allegation that justice was “lawful inhabitant and citizen of said town of B.,” did not import that he was liable to pay taxes, and therefore interested in cause. Pierce v. Butler, 16 Vt. 101, 1844 Vt. LEXIS 20 (1844).

Justice of peace who was rated inhabitant of town into treasury of which fine was to be paid had jurisdiction of cause. State v. Batchelder, 6 Vt. 479, 1834 Vt. LEXIS 79 (1834).

Fact that one of grand jurors who presented bill of indictment against town for not making and opening road was rateable inhabitant of town was no cause why such indictment should be quashed. State v. Newfane, 12 Vt. 422, 1840 Vt. LEXIS 64 (1840).

In action of debt on recognizance taken for appearance of person arrested on criminal process, it was no defense that jury who tried case were taken from town to which fine would be payable. Treasurer of Middletown v. Ames, 7 Vt. 166, 1835 Vt. LEXIS 35 (1835).

Waiver of disqualification.

If justice, who was interested, continued cause, and parties went to trial on merits without objection on account of improper continuance, irregularity in continuance was waived. Howe v. Hosford, 8 Vt. 220, 1836 Vt. LEXIS 44 (1836).

Although juror had remained on panel by consent of parties, this did not preclude party from challenging him, on the ground of having been recognized for costs of prosecution, upon impaneling of another jury to try same issue. Phelps v. Hall, 2 Tyl. 401 (1803), same case 2 Tyl. 399.

Objection on appeal that trial judge was interested in suit was not considered where record did not disclose fact that judge was interested. Weeks v. Sowles, 58 Vt. 696, 6 A. 603, 1886 Vt. LEXIS 133 (1886).

II. RELATIONSHIP.

Administrative agencies.

Relationship provision does not apply to a board of license commissioners, and so will not disqualify a member of the board because of his relationship to the applicant for a liquor license. Davidson v. Whitehill, 87 Vt. 499, 89 A. 1081, 1914 Vt. LEXIS 267 (1914).

Commissioner on sewer assessments was not disqualified by fact that an abutting owner who had paid his assessment before hearing, was related to the commissioner within fourth degree. Sowles v. St. Albans, 71 Vt. 418, 45 A. 1050, 1899 Vt. LEXIS 208 (1899).

Attorney, relationship to.

Trial judge was not disqualified because his brother was attorney for one of parties to action. Johnson v. Moore, 109 Vt. 282, 196 A. 246, 1938 Vt. LEXIS 133 (1938).

Degree of relationship.

Relationship is affinity or consanguinity within fourth degree, reckoned according to civil, not canon law. Churchill v. Churchill, 12 Vt. 661, 1839 Vt. LEXIS 171 (1839).

Relationship by affinity ceases upon dissolution of marriage which created it. Blodget v. Brinmaid, 9 Vt. 27, 1837 Vt. LEXIS 2 (1837), 22 B.U.L. Rev. 407, 410, 560, 56 Yale L.J. 616 (1837).

Fact that magistrate taking a deposition was second cousin to party offering it was no ground for its exclusion, that not being relationship within fourth degree. Reed v. Newcomb, 62 Vt. 75, 19 A. 367 (1889), same case 64 Vt. 49, 23 A. 589.

Relationship generally.

Provision that judge is disqualified if related to either party within fourth degree of consanguinity or affinity, is to be given strict construction and applied only to those who are actual parties to suit. Johnson v. Moore, 109 Vt. 282, 196 A. 246, 1938 Vt. LEXIS 133 (1938).

Judgment rendered on voluntary confession of debtor by justice of peace who was related to creditor within fourth degree of affinity, was void for want of jurisdiction. Hill v. Wait, 5 Vt. 124, 1831 Vt. LEXIS 76 (1831).

Person was disqualified to sit as auditor in trial of action of book account whose wife was first cousin to wife of one of the parties. Clapp v. Foster, 34 Vt. 580, 1861 Vt. LEXIS 99 (1861).

Relationship to party which disqualifies juror is same which disqualifies judge or justice. Churchill v. Churchill, 12 Vt. 661, 1839 Vt. LEXIS 171 (1839).

Husband and wife were each qualified in his or her own right to act as jurors and, although trial court could have held, in its discretion, that presence of both on same jury might prevent a fair trial and so could have excused one, there was no legal impediment to having both on same jury. State v. Wilkins, 115 Vt. 269, 56 A.2d 473, 1948 Vt. LEXIS 64 (1948).

Stockholder or policyholder, relationship to.

In suit by corporation, it was no valid objection to jurisdiction of justice, that he was related to corporator and stockholder. Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315, 1834 Vt. LEXIS 60 (1834).

Where wife of one of grand jurors, who found an indictment against respondent charged with misapplying and diverting funds of bank, was depositor in her own right, grand juror was not disqualified. State v. Brainerd, 56 Vt. 532 (1884), same case 57 Vt. 369.

Cited.

Cited in State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989); Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997); McIsaac v. Univ. of Vt., 2004 VT 50, 177 Vt. 16, 853 A.2d 77, 2004 Vt. LEXIS 167 (2004).

Law Reviews —

Disqualifications of judges, see 56 Yale L.J. 605, 614 (1947).

A Crisis in Confidence: Municipal Officials Under Fire, see 16 Vt. L. Rev. 579 (1992).

Generally.

Because the statute regarding contempt in Superior Court was merely a procedural prerequisite to the institution of contempt proceedings, the prohibition against court rules imposing substantive changes of the law was inapplicable here. Welch v. Welch, 2013 VT 20, 193 Vt. 385, 67 A.3d 956, 2013 Vt. LEXIS 15 (2013).

A party cannot be subjected to contempt proceedings under this section until actual service has been accomplished. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Contempt proceeding based on violation of court order does not open to reconsideration the legal or actual basis of the order so as to result in a retrial of the original controversy. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

The right of a party to be heard in defense of his rights cannot be withheld as a punishment for acts of contempt that did nothing to hinder or embarrass the proceedings or degrade the authority of the court. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

The contemptuous conduct must, in some way, affect the due course of procedure to final decree; otherwise, it cannot be used to forbid the libellee, who is in court in response to its summons, the right to take part in a hearing which deprives him of the subject matter of the litigation. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

Contempt proceeding is taken in the original action. Macdermid v. Macdermid, 116 Vt. 237, 73 A.2d 315, 1950 Vt. LEXIS 140 (1950).

Appeal and review.

An appeal may be taken to review questions of law decided in contempt proceedings heard by chancery and county courts. Socony Mobile v. Massena Iron and Metal, 125 Vt. 403, 217 A.2d 56, 1966 Vt. LEXIS 200 (1966).

Defenses.

In a divorce action abated by the death of husband, the Family Court correctly concluded that contempt provided no adequate remedy where husband removed wife as the beneficiary of a life insurance policy in violation of a pre-abatement order. Aither v. Estate of Aither, 2006 VT 111, 180 Vt. 472, 913 A.2d 376, 2006 Vt. LEXIS 313 (2006).

Defendant was properly held in contempt of order that he pay child support, even though there was no finding that he had the present ability to pay, as defendant, who did not dispute that he had failed to comply with the orders, had the burden of establishing inability to comply. The court held defendant in contempt, not because he had the present ability to pay the child support, but because he failed to establish an inability to comply with its orders. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

The inability, without fault, to render obedience to an order or decree of a court is a good defense to a charge of contempt, but such a defense is effective only where, after using due diligence, the person is still not able to comply with the order. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Defendant has burden of proving the impossibility of compliance with court order in contempt proceedings based on violation of such order. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Absent a showing of due diligence on the part of the defendants to comply with the order of the court, trial court was not required to make determination of whether defendant was unable to obey decree by reason of plaintiff’s failure to perform. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

Discretion of court.

The power of contempt is, in the main, discretionary, and when the court is called upon to exercise its discretion in the matter, the moving party is entitled to have the issue settled. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962).

Fines and penalties.

Only compensatory fines or coercive sanctions may be imposed on a civil contemnor. State v. Pownal Tanning Co., 142 Vt. 601, 459 A.2d 989, 1983 Vt. LEXIS 441 (1983).

In the case of defendant, found in contempt of a judgment order incorporating a stipulation between defendant and the State, whereby defendant agreed to abate nuisance odors from its tannery, $10,000 fine imposed on defendant could not be upheld as a civil contempt penalty, where it was not compensatory in nature since the State introduced no evidence of any loss occasioned by defendant’s failure to comply with the order, and where it was not a coercive fine since it was not purgeable. State v. Pownal Tanning Co., 142 Vt. 601, 459 A.2d 989, 1983 Vt. LEXIS 441 (1983).

Parties.

Although this section requires service of a contempt order before it can be enforced, it does not limit parties against whom it may be enforced once it is effective. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992).

Argument was rejected that contempt proceedings may be instituted only against party named in caption of case for violation of court order; this section does not impose a limit on the persons that a court could punish for contempt. Horton v. Chamberlain, 152 Vt. 351, 566 A.2d 953, 1989 Vt. LEXIS 182 (1989).

Procedure.

Contempt proceeding was heard by the court itself, the cause did not have to be brought forward and it could not be said that failure to bring cause forward resulted in cause not being properly before the court. Bessette v. Bessette, 137 Vt. 227, 401 A.2d 911, 1979 Vt. LEXIS 907 (1979).

The requirement of service of the court order, provided for in this section, is merely a procedural prerequisite to the institution of contempt proceedings. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 1966 Vt. LEXIS 187 (1966).

A party to a divorce proceeding cannot be adjudged in contempt for an out-of-court failure to abide by a court order, without an order to show cause and an opportunity to be heard. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

Where defendant had actual knowledge and notice of contempt petition and what was set forth in it he could not avail himself of fact that process was not served personally on him. Macdermid v. Macdermid, 116 Vt. 237, 73 A.2d 315, 1950 Vt. LEXIS 140 (1950).

Service of copy of contempt proceeding on attorney of record of defendant in case wherein order was made on which contempt petition was based was good and valid service on such defendant in contempt proceedings. Macdermid v. Macdermid, 116 Vt. 237, 73 A.2d 315, 1950 Vt. LEXIS 140 (1950).

Where relator was proceeded against for contempt, in disobedience of an order of chancellor upon showing of other party, and adjudication of chancellor was on this showing alone, without any attempt to give notice to person convicted, proceeding was irregular and such proceeding was regarded as a distinct and independent matter requiring distinct notice, as much as a new suit. Ex parte Langdon, 25 Vt. 680, 1853 Vt. LEXIS 110 (1853).

Right to attorney.

An indigent defendant is entitled, under the due process clause of the Fourteenth Amendment, to appointment of counsel prior to being incarcerated for civil contempt. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

Civil contempt for failure to pay child support involves three issues: (1) The obligee must show that the obligor violated the court’s child-support order; (2) The obligor then has the burden of showing an inability to comply; and (3) If the obligor fails to meet this burden, the court may find him in willful violation of the order and, in the final step, determine appropriate means by which to ensure compliance with the order. Where defendant was represented by counsel on all three issues at the purge hearing that ultimately resulted in an order of incarceration, due process did not require appointment of counsel at an earlier point in the proceeding. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

Although the Public Defender Act, 13 V.S.A. §§ 5201-5277 , does not authorize courts to assign civil contempt proceedings to the Defender General even where the trial court considers ordering incarceration, nor does it authorize compensation of appointed counsel to be made from funds appropriated to the Office of the Defender General, the court has the inherent power to require attorneys to serve and protect the vital interests of uncounselled litigants where circumstances demand it. Public defenders, like all members of the bar, are subject to such appointment. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

Service of order.

Without question, the statute regarding contempt in Superior Court and the case law construing that statute require service of the underlying order upon a party before the party can be found in contempt for violating that order, but neither the statute nor the case law purports to designate the form of service required. Indeed, when the Legislature intends to do so, it makes the form of service explicit. Welch v. Welch, 2013 VT 20, 193 Vt. 385, 67 A.3d 956, 2013 Vt. LEXIS 15 (2013).

Service requirement of this section is merely a procedural prerequisite to institution of contempt proceedings. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992).

Service requirement of this section did not apply to parties who acted in concert with parties named in temporary restraining order. Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 617 A.2d 411, 1992 Vt. LEXIS 138 (1992).

Temporary alimony.

County court has implied jurisdiction to enforce order for payment of temporary alimony by proceedings for contempt, and such jurisdiction has been expressly granted to Superior judge by this section and 15 V.S.A. § 602 . Cutting v. Cutting, 101 Vt. 381, 143 A. 676, 1928 Vt. LEXIS 166 (1928).

I. GENERALLY.

Construction and effect.

With respect to a dispute between the parties regarding their real estate agreement, as the agreement was a valid contract for deed and not unenforceable under the Statute of Frauds, the purchasers acquired an equitable interest in the property. Prue v. Royer, 2013 VT 12, 193 Vt. 267, 67 A.3d 895, 2013 Vt. LEXIS 9 (2013).

When a grantor transferred real property to his then girlfriend, who transferred it to her son after the relationship ended, the statute of frauds did not prevent the grantor from presenting evidence of an alleged oral agreement that the girlfriend would reconvey the property to him. Such evidence could be used not to enforce the terms of the alleged agreement, but to support the grantor’s assertion that the girlfriend and son were unjustly enriched and that he was entitled to the imposition of a constructive trust. Savage v. Walker, 2009 VT 8, 185 Vt. 603, 969 A.2d 121, 2009 Vt. LEXIS 4 (2009) (mem.).

As a general rule, a contract involving the sale of land or interests therein must be in writing to be enforceable. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

While partnership or joint venture agreements need not be in writing as a general matter, the fact that agreements covered by the Statute of Frauds—such as those relating to interests in real property—are made in the context of a partnership or joint venture agreement does not render the Statute inapplicable. The fact that the agreement involves parties to a business partnership does not negate the interests traditionally safeguarded under the Statute. Quimby v. Myers, 2005 VT 123, 179 Vt. 611, 895 A.2d 128, 2005 Vt. LEXIS 305 (2005) (mem.).

The Statute of Frauds establishes a rule of evidence regarding parol testimony, and does not make oral contracts illegal or void per se. Troy v. Hanifin, 132 Vt. 76, 315 A.2d 875, 1974 Vt. LEXIS 303 (1974).

Any changes made in contract governed by the provisions of Statute of Frauds are subject to the same requirements of form as the original provisions. Evarts v. Forte, 135 Vt. 306, 376 A.2d 766, 1977 Vt. LEXIS 614 (1977).

Although the Statute of Frauds is merely a rule of evidence, litigants who timely raise it are entitled to its enforcement. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

Where a contract is governed by the Statute of Frauds, any changes made are subject to the same requirements of form as the original provisions. Kingsbury v. Villeneuve, 144 Vt. 648, 475 A.2d 241, 1984 Vt. LEXIS 467 (1984) (mem.).

Statute of Frauds applies to executory contracts. Ide & Smith v. Stanton, 15 Vt. 685, 1843 Vt. LEXIS 110 (1843).

Statute of Frauds does not make oral contracts illegal or void and unenforceable if allowed to be proved by parol, but affects rules of evidence and not pleading. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923); Scofield v. Stoddard, 58 Vt. 290, 5 A. 314 (1886); Montgomery v. Edwards, 46 Vt. 151, 1873 Vt. LEXIS 84 (1873); Adams v. Patrick, 30 Vt. 516, 1858 Vt. LEXIS 63 (1858).

Statute of Frauds does not interfere with substance of contract, but throws difficulty in way of evidence. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Statute of Frauds, which prohibits suit on certain contracts not in writing, does not make contract void, but so far as same may have been performed, party may defend under it as to what has been done. Philbrook v. Belknap, 6 Vt. 383, 1834 Vt. LEXIS 69 (1834); Mack v. Bragg, 30 Vt. 571, 1858 Vt. LEXIS 71 (1858).

Estoppel.

Where an agreement for purchase and sale of real estate provided that the sale was contingent on buyer having seen the placement of utility lines, but buyer was required to notify owner of her intention to proceed with the sale 14 days after the lines had been installed and owner’s real estate broker orally agreed to several time extensions for buyer to inspect the lines, the owner was estopped from asserting a continuing right in the buyer to cancel the contract. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

In action to recover for labor with team, plaintiff’s contention that defendant was estopped from setting up Statute of Frauds as defense by reason of having represented to plaintiff that he could pay by team work for certain wagon sold him by defendant, was untenable, where contract on which recovery was sought was admittedly oral, and there was no testimony tending to show that purchase of wagon had any connection with it, or was an acknowledgement of it. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Modifications.

With respect to a dispute between the parties regarding their real estate agreement and related financing agreements, it was clear that the modifications were intended to refer to and modify the earlier purchase agreement, such that there was no violation of the Statute of Frauds by the failure to include a closing date therein. Prue v. Royer, 2013 VT 12, 193 Vt. 267, 67 A.3d 895, 2013 Vt. LEXIS 9 (2013).

Although, generally, changes in contracts covered by this section are governed by the same formal requirements as the original contract, where the parties waive, by their words and conduct, the time limitations of the contract, the nonwritten modification does not violate this section since waiver and estoppel operate independently of it. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

An oral modification of a written contract is unenforceable under the Statute of Frauds. Kingsbury v. Villeneuve, 144 Vt. 648, 475 A.2d 241, 1984 Vt. LEXIS 467 (1984) (mem.).

Any proposed changes or modifications in a contract controlled by this section are subjected to the same requirements of form as the original provisions. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Price.

Although price is an essential term of a bargain of sale and must be stated in memorandum thereof, this is so only when parties agree on price, and if they leave price unfixed, law steps in and fixes it at reasonable figure, memorandum required by statute need not state price, and parol evidence is admissible to determine it. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Purpose.

The purpose of this section is to prevent a party from being compelled, by oral and perhaps false testimony, to be held responsible for an agreement he or she claims was never made. Mason v. Anderson, 146 Vt. 242, 499 A.2d 783, 1985 Vt. LEXIS 375 (1985).

While the writing requirement of this section is imposed primarily as a shield against possible fraud, it also promotes deliberation, seriousness, certainty, and shows that the act was a genuine act of volition. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Purpose of Statute of Frauds is to prevent party from being compelled, by oral and perhaps false testimony, to be held responsible for contract he claims he never made. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

If, however, that party has offered in writing to make very contract with which it is sought to charge him, he cannot justly complain because acceptance of other party is oral. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

Provisions of Statute of Frauds applicable to contracts affecting interests in land were adopted for purpose of preventing existing estates in land from being upset by parol evidence, and their general effect is to require all contracts concerning real estate to be in writing. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Reliance on oral promise.

An oral agreement may be removed from the Statute of Frauds if the proponent can show that, in reliance on the agreement, he or she suffered a substantial and irretrievable change in position. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Statute of Frauds did not bar enforcement of general contractor’s oral agreement to deed water line to town without payment, since town’s performance of its part of bargain—permitting general contractor to install ten-inch water main under town road—altered positions of parties and thus enforcement of agreement was needed to prevent injustice. Town of Rutland v. City of Rutland, 170 Vt. 87, 743 A.2d 585, 1999 Vt. LEXIS 314 (1999).

If a party relies on an oral promise, fully performing its end of the bargain, then a written promise is not required if it would be fraud to allow the promisor to deny the contract. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

The law does not require that a party seeking to enforce an oral promise prove fraud; rather, he must show that acts of his, done in reliance on the agreement, known to the defendant, so altered the relations of the parties as to prevent restoration to their former condition. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

—Generally.

Affidavit by the sole member of a limited liability company taken in a federal court proceeding was not a repudiation of an existing contract, or an assertion that it was not binding because not in writing, but rather a denial that a contract was ever formed. As such, it did not provide the unambiguous recognition of the contract that was required to satisfy the Statute of Frauds. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

E-mails from the attorney for the sole member of a limited liability company (LLC) could not supply the signed writing required by the Statute of Frauds because the attorney was not authorized in writing to conclude the real estate sale on behalf of the member or the LLC. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

A written offer that is orally accepted may constitute a sufficient memorandum of the contract under this section provided the offeror is the party to be charged. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

To comply with statute, written memorandum must either by its own language or by reference to something else, contain such description of contract actually made as obviates necessity of resorting to oral evidence in order to supply any terms of contract essential to its validity. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

If any of these essential terms are altered by contact not in writing, entire contract is thereby reduced to grade of mere unwritten contract, upon which statute expressly declares that no action shall be maintained. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Dana & Henry v. Hancock, 30 Vt. 616, 1858 Vt. LEXIS 83 (1858).

Written offer accepted by parol may constitute sufficient memorandum of contract to satisfy statute, provided person making offer is party to be charged. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

An exception in deed of land by vendor to third person, of timber upon it, which he had previously sold to vendee, was not such a memorandum of contract, as was required by statute, to make it valid as contract. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

Signing.

Statute of Frauds barred use of telegram as written evidence of an indemnity contract where no signed telegram or any signed authority of the sending agent was put in evidence. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

Signing required by Statute is signature to memorandum placed there with the intention of authenticating the writing, and if that is intention it is not essential that signature be at the end of memorandum in any particular place thereon and it may be in place provided for signature of witness. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

—Affirmative defenses.

Where, under rule, Statute of Frauds was an affirmative defense and required to be pleaded, plaintiff who failed to plead it in response to counterclaim could not avail himself of the defense in either the lower court or Supreme Court. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Waiver.

A party can waive the benefit of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Benefit of Statute of Frauds may be waived. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961); Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Statute of Frauds is available on demurrer where pleadings disclose an agreement within it. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Statute was available in defense under general issue in assumpsit. Pocket v. Almon, 90 Vt. 10, 96 A. 421, 1916 Vt. LEXIS 228 (1916).

Exception based on ground that agreement violated statute is too late to be available where excepting party did not plead statute and allowed contract to be proved by oral testimony without objection. LaPlante v. Eastman, 118 Vt. 220, 105 A.2d 265, 1954 Vt. LEXIS 106 (1954).

Statute amounts simply to rule of evidence, and if one entitled to invoke statute remains silent when parol evidence of contract is offered and admitted, he waives right to rely thereon by his silence. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Where defendant had permitted contract to be proved by parol evidence without objection, subsequent filing of an amended answer pleading statute was too late. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Statute could be availed of by seasonable objection to evidence, without being specially pleaded. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Being a rule of evidence, statute may be waived, and is waived, by permitting proof of a contract by parol evidence without objection, it being too late to invoke the statute after the evidence is thus admitted. Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

Although verbal contract, in part for sale of land and inseparable, was within statute, such statute affected only remedy, and as vendors were not obliged to avail themselves of benefit of its protection to avoid their undertaking, if they chose to recognize contract without claiming such protection, it was good against them. Cooley v. Hatch, 97 Vt. 484, 124 A. 589 (1923), same case 91 Vt. 128, 99 A. 784.

Requirement that promise to answer for the debt of another, etc., be in writing does not make such promise invalid, but is merely a rule of evidence, which is waived if not insisted upon. McDonald v. Place, 88 Vt. 80, 90 A. 948, 1914 Vt. LEXIS 191 (1914).

When evidence obnoxious to statute was received without objection, statute was waived. Holt v. Howard, 77 Vt. 49, 58 A. 797, 1904 Vt. LEXIS 94 (1904).

If defendant waives benefit of statute by admitting contract in his answer, without insisting on statute, or by allowing it to be proved by evidence not in writing, contract is as enforceable as though not required to be evidenced by written instrument. Scofield v. Stoddard, 58 Vt. 290, 5 A. 314 (1886).

Failure to expressly claim benefit of statute not only amounted to renunciation of such benefit, but effect was permanent, and not confined to existing issues; and thus where party in original suit failed to claim in explicit language benefit of statute, he could not set up statute as defense to cross-bill. Battell v. Matot, 58 Vt. 271, 5 A. 479, 1885 Vt. LEXIS 34 (1885).

An admission in bill brought to restrain cutting of standing trees, that defendant had made verbal contract with the owner for the sale of the trees, was a formal waiver of all benefit derivable from the statute, unless at the same time statute is insisted on in clear and explicit language. Battell v. Matot, 58 Vt. 271, 5 A. 479, 1885 Vt. LEXIS 34 (1885).

Statute was waived in case in chancery unless pleaded. Howe v. Chesley, 56 Vt. 727, 1883 Vt. LEXIS 144 (1883).

Where specific performance of contract was sought to be enforced in chancery, and defendant desired to avoid such performance, on ground that contract was by parol, and therefore within Statute of Frauds, he was required to make this objection by plea or answer, otherwise he would be deemed to waive it. Adams v. Patrick, 30 Vt. 516, 1858 Vt. LEXIS 63 (1858).

—Affirmative defenses.

Where, under rule, Statute of Frauds was an affirmative defense and required to be pleaded, plaintiff who failed to plead it in response to counterclaim could not avail himself of the defense in either the lower court or Supreme Court. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

—Generally.

Affidavit by the sole member of a limited liability company taken in a federal court proceeding was not a repudiation of an existing contract, or an assertion that it was not binding because not in writing, but rather a denial that a contract was ever formed. As such, it did not provide the unambiguous recognition of the contract that was required to satisfy the Statute of Frauds. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

E-mails from the attorney for the sole member of a limited liability company (LLC) could not supply the signed writing required by the Statute of Frauds because the attorney was not authorized in writing to conclude the real estate sale on behalf of the member or the LLC. Stonewall of Woodstock Corp. v. Stardust 11TS, LLC, 2018 VT 79, 208 Vt. 97, 195 A.3d 1111, 2018 Vt. LEXIS 113 (2018).

A written offer that is orally accepted may constitute a sufficient memorandum of the contract under this section provided the offeror is the party to be charged. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

To comply with statute, written memorandum must either by its own language or by reference to something else, contain such description of contract actually made as obviates necessity of resorting to oral evidence in order to supply any terms of contract essential to its validity. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Taplin v. Hinckley Fibre Co., 97 Vt. 184, 122 A. 426, 1923 Vt. LEXIS 228 (1923).

If any of these essential terms are altered by contact not in writing, entire contract is thereby reduced to grade of mere unwritten contract, upon which statute expressly declares that no action shall be maintained. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956); Dana & Henry v. Hancock, 30 Vt. 616, 1858 Vt. LEXIS 83 (1858).

Written offer accepted by parol may constitute sufficient memorandum of contract to satisfy statute, provided person making offer is party to be charged. First Nat'l Bank v. Laperle, 117 Vt. 144, 86 A.2d 635, 1952 Vt. LEXIS 115 (1952).

An exception in deed of land by vendor to third person, of timber upon it, which he had previously sold to vendee, was not such a memorandum of contract, as was required by statute, to make it valid as contract. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

II. PROMISE OF EXECUTOR OR ADMINISTRATOR.

Expenses of estate.

Express promise of administrator to pay for expense of building fence was void unless made in writing. Cummings v. Brock, 56 Vt. 308, 1883 Vt. LEXIS 116 (1883).

Heirs, promise to pay.

Promise of executor to pay $5,000 to one of testator’s heirs-at-law, who received nothing under will, in consideration that he would forbear further opposition to probate of will, claimed to have been made as it was through undue influence, was not within statute. Bellows v. Sowles, 57 Vt. 164 (1884), same case 55 Vt. 391, 59 Vt. 63, 7 A. 542. 38 A.L.R. 741, 55 A.L.R. 818.

Individual capacity.

Where an executor contracted for services which were for benefit of estate without limiting his liability, he bound himself in his individual capacity, and debt thus contracted was not debt of said estate, and was not within clause relative to “special promise of an executor or administrator to answer damages out of his own estate.” Reynolds-McGinness Co. v. Green, 78 Vt. 28, 61 A. 556, 1905 Vt. LEXIS 77 (1905).

III. DEBT, DEFAULT, OR MISDOINGS OF ANOTHER.

Generally.

As a general rule, an oral promise to pay the debt of another is unenforceable under this section if the original debtor remains liable after the promise is made. Lussier v. North Troy Engineering Co., 149 Vt. 486, 544 A.2d 1173, 1988 Vt. LEXIS 47 (1988).

Statute of Frauds was inapplicable as an affirmative defense to action on unpaid loans, where plaintiff sought to enforce a promise to satisfy debt payments through resale of land. Cameron v. Burke, 153 Vt. 565, 572 A.2d 1361, 1990 Vt. LEXIS 16 (1990).

Provision is applicable only where promise is to pay the debt of another, not where it is to pay debt of promisor. Newport Grain Store v. Bergeron, 115 Vt. 283, 57 A.2d 123, 1948 Vt. LEXIS 67 (1948); Trow v. Braley, 56 Vt. 560, 1884 Vt. LEXIS 94 (1884).

Debtor cannot rely on parol agreement of another to pay his debt, such agreement being within statute, but he must show in addition an actual substitution of third person for himself by an arrangement of all parties, or an actual compliance with terms of agreement; willingness to pay as agreed by third person, and to receive the same of him by the creditor, is not sufficient. Buchanan v. Paddleford, 43 Vt. 64, 1870 Vt. LEXIS 47 (1870).

Waiver of promise to pay debt of another that was without consideration and within statute, or refusal to receive such payment, did not discharge original debtor. Rising v. Cummings, 47 Vt. 345, 1875 Vt. LEXIS 26 (1875).

Ancillary promise.

When promise is ancillary to, and in aid of promise of another, it is within statute. Newell v. Ingraham, 15 Vt. 422, 1843 Vt. LEXIS 63 (1843).

Antenuptial debt.

Naked parol promise of husband, made prior or during coverture, to pay antenuptial debt of his wife, she not having been discharged or released from its payment, was within statute. Cole v. Shurtleff, 41 Vt. 311, 1868 Vt. LEXIS 118 (1868).

Auxiliary contract.

When new contract is made by third person, auxiliary to subsisting contract, it must be in writing. Sinclair v. Richardson, 12 Vt. 33, 1840 Vt. LEXIS 6 (1840).

Bill of exchange.

Parol acceptance of bill of exchange was not within statute. Montgomery Ward & Co. v. Newman, 104 Vt. 115, 157 A. 824, 1932 Vt. LEXIS 126 (1932); Arnold v. Sprague, 34 Vt. 402, 1861 Vt. LEXIS 73 (1861).

Consideration.

Statute does not require that consideration of written promise to answer for debt, default, or miscarriage of third person shall appear in writing. Smith v. Ide, 3 Vt. 290, 1830 Vt. LEXIS 72 (1830).

—Generally.

Issue of whether a special promise to answer for the debt, default or misdoings of another is original and not under the Statute of Frauds, or whether it is collateral, is usually a factual issue, and the new promise is original if it contemplates a discharge of the first contracting party and substitution of the party involved in the new contract. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

This section applies to, inter alia, a special promise to answer for the debt, default or misdoings of another; an original promise, however, is unaffected by this section, and thus can be oral. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

A promise is original and not within this section when leading object of promisor is to subserve some interest or purpose of his own notwithstanding that effect is to pay or discharge debt of another. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

Oral assurances by producers to pay debts of joint venture formed by them to operate cheese processing plant was an “original promise” unaffected by this section when such oral assurances enabled producers to continue legally disposing of whey after joint venture breached its agreement with hauler. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

An original promise to answer for the debt of another is enforceable because it is supported by new consideration, that is the promise must benefit or operate as an advantage to the party making it; a collateral promise is unenforceable because it is simply gratuitous. Lussier v. Stevens, 153 Vt. 362, 571 A.2d 666, 1989 Vt. LEXIS 250 (1989).

If oral promise is original, Statute of Frauds does not prevent recovery, but if collateral, statute is bar. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121; Keyes & Co. v. Allen, 65 Vt. 667, 27 A. 319, 1893 Vt. LEXIS 112 (1893); Greene v. Burton, 59 Vt. 423, 10 A. 575 (1887); Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Bradley v. Richardson, 23 Vt. 720, 3 F. Cas. 1159, 1851 U.S. App. LEXIS 388 (1851); Peck v. Thompson, 15 Vt. 637, 1843 Vt. LEXIS 101 (1843).

To bring case within provision of statute, it is necessary that undertaking should be collateral to liability of another. Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Steele v. Towne, 28 Vt. 771, 1856 Vt. LEXIS 122 (1856); Wainwright v. Straw, 15 Vt. 215, 1843 Vt. LEXIS 33 (1843).

When by accession and agreement of all parties interested, original or intermediate debt is extinguished, promise to pay amount thereof to third party is not promise to answer for debt of another within statute, as no such debt exists, it being new, original, and independent engagement, founded on merger and extinguishment of pre-existing debt or demand. Williams v. H.A. Little & Co., 35 Vt. 323, 1862 Vt. LEXIS 44 (1862); Templeton v. Bascom, 33 Vt. 132, 1860 Vt. LEXIS 78 (1860).

As general rule, verbal promise to pay debt of another is collateral and within statute if debtor continues liable after promise is made. Conti v. Johnson, 91 Vt. 467, 100 A. 874, 1917 Vt. LEXIS 268 (1917).

Where plaintiff claimed to recover payment from defendant for services rendered third person, and it appeared, that defendant, previous to rendition of services, promised to be responsible for the amount, and plaintiff supposed he was working for defendant, and charged his services to defendant, undertaking of defendant was original, and not collateral, and he was liable to plaintiff for amount of his account. Arbuckle v. Hawks, 20 Vt. 538, 1848 Vt. LEXIS 74 (1848).

Promise of assignee to keep assigned property for benefit and security of certain sureties of assignor was original undertaking and not within statute. Merrill v. Englesby, 28 Vt. 150, 1855 Vt. LEXIS 152 (1855).

An undertaking that if A. would work for B., defendant would pay him if B, did not, was within statute. Aldrich v. Jewell, 12 A. 125 (1840).

Consideration.

In determining whether a subsequent oral promise to pay a debt constitutes an original contract unaffected by this section, rather than a collateral promise to an original contract unenforceable under subdivision (2) of this section, court must look to see if there was new consideration to support the agreement; if new consideration exists, the contract is considered an original agreement. Lussier v. North Troy Engineering Co., 149 Vt. 486, 544 A.2d 1173, 1988 Vt. LEXIS 47 (1988).

Where corporation agreed to pay plaintiff a finder’s fee for locating a bank which the corporation could purchase, and the corporation’s sole stockholder orally promised to pay plaintiff’s fee if the corporation did not, stockholder’s promise constituted a collateral promise to the original contract, unenforceable under subdivision (2) of this section, rather than an original contract, since it would not benefit the stockholder in any way that was not already established by the original contract. Lussier v. North Troy Engineering Co., 149 Vt. 486, 544 A.2d 1173, 1988 Vt. LEXIS 47 (1988).

Where oral promise is original, based on valuable consideration between promisor and promisee, and not collateral to original debt, case is not within statute, provided it affirmatively appears that consideration is one which operates to advantage of promisor. Johnson v. Samson Est., 113 Vt. 38, 29 A.2d 919, 1943 Vt. LEXIS 130 (1943).

Promise to pay debt of another is not within statute and need not be in writing, if it is based upon valuable consideration independent of original debt, moving between the parties to new promise, or even from original debtor to promissor; and when such consideration exists, it makes no difference in regard to application of statute, whether original debtor remains liable or not. Cross v. Richardson, 30 Vt. 641, 1858 Vt. LEXIS 88 (1858); Wait v. Ex'r of Wait, 28 Vt. 350, 1856 Vt. LEXIS 37 (1856); French v. Thompson, 6 Vt. 54, 1834 Vt. LEXIS 11 (1834).

Discharge of original debt is sufficient consideration for new promise by another to pay it, and new promise is not within statute, but is an independent contract and provable as such. F.I. Somers & Sons v. LeClerc, 110 Vt. 408, 8 A.2d 663, 1939 Vt. LEXIS 159 (1939).

Subsequent promise of defendant to pay plaintiff, for which there was no consideration, could not convert such collateral undertaking into an original one. Steele v. Towne, 28 Vt. 771, 1856 Vt. LEXIS 122 (1856).

Contractor.

Where owner orally promises subcontractor to pay him for work done by him on house, if principal contractor does not, and thereafter owner withholds amount due subcontractor from contract price paid the principal contractor, oral promise is not within statute of frauds, for owner is in position of one who holds property or funds of a debtor for application to demand against him. Pocket v. Almon, 90 Vt. 10, 96 A. 421, 1916 Vt. LEXIS 228 (1916).

Future labor.

Promise to laborer to pay for future labor for which another person had contracted but has defaulted is not within statute where labor is performed solely on credit of promissor who has primary beneficial interest in performance of contract. Rozelle v. Caledonia Sand & Gravel Co., 120 Vt. 246, 138 A.2d 619, 1958 Vt. LEXIS 100 (1958).

—Generally.

Guaranty of a future liability is within statute. Mead, Mason & Co. v. Watson, 57 Vt. 426, 1885 Vt. LEXIS 74 (1885).

Indemnity.

Subdivision (2) of this section did not apply to defendant’s oral promise to pay one-half of any judgment recovered by grantor of real estate in action against both parties where context in which promise was made supported inference that parties’ agreement to share losses was motivated by achieving a stronger defense through mutual cooperation and, barring a win, spreading the risk of loss. Lussier v. Stevens, 153 Vt. 362, 571 A.2d 666, 1989 Vt. LEXIS 250 (1989).

If promise of indemnity is not collateral to liability of some other person to same party to whom promise is made, it is not within statute, and in absence of all evidence that there was liability of any other person to plaintiff, to which defendant’s promise of indemnity could have been collateral, it must be treated as an original promise. Adm'rs of Beaman v. Russell, 20 Vt. 205, 1848 Vt. LEXIS 21 (1848).

Where plaintiff, as administrator of an estate, delivered all assets of estate in his hands to defendant, in consideration of defendant’s parol promise to pay all claims that might thereafter arise against plaintiff as such administrator, defendant’s promise was not within statute. Randall v. Kelsey, 46 Vt. 158, 1873 Vt. LEXIS 86 (1873).

Intent.

Whether oral promise to pay was original or collateral is largely question of intent, to be gathered from language used by parties, judged by consideration of their situation, and all circumstances surrounding transaction. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121.

That form of expression used in oral promise to pay ordinarily imports collateral undertaking, is not necessarily conclusive of its legal effect. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121.

Mortgage, removal of.

Parol agreement by vendor with vendee of land, to remove mortgage thereon, given to secure debt of another, was not within statute and was founded on sufficient consideration. Green v. Randall, 51 Vt. 67, 1878 Vt. LEXIS 123 (1878).

Novation of contract.

In contract of novation, new promise is not within statute, but is an independent contract and provable as such. Peters v. Estate of Poro, 96 Vt. 95, 117 A. 244, 1922 Vt. LEXIS 128 (1922).

Pauper’s support.

Promise of overseer to plaintiff, to take good care of pauper, and that if the latter did not pay him, he, overseer, would see that he had his pay, was held to be an original promise, not within the Statute of Frauds, and was binding upon town. Blodgett v. Lowell, 33 Vt. 174, 1860 Vt. LEXIS 88 (1860).

Physician’s services.

Where defendant made direct verbal promise to pay physician for services rendered to another, such promise was primary and original and statute did not apply to a contract based thereon. Lawrence v. Anderson, 108 Vt. 176, 184 A. 689, 1936 Vt. LEXIS 170 (1936).

Premiums.

Where trustees, who were agents of the defendant, orally guaranteed to policy holders payment of unearned premiums in case of cancellation by defendant, and received from defendant commission in view of such guaranties, guaranties were unenforceable, as within statute. Garfield v. Rutland Inc. Co., 69 Vt. 549, 38 A. 235, 1897 Vt. LEXIS 102 (1897).

Question for jury.

Whether new contract was collateral or independent was question of fact for jury. Sinclair v. Richardson, 12 Vt. 33, 1840 Vt. LEXIS 6 (1840).

Where truckman who had been hauling slate from quarry for slate company ceased work because unable to get his pay, but recommenced work after oral promise of representative of company owning quarry to see that truckman would get his money, in action of contract against such quarry company for slate hauled after such promise, evidence was sufficient to make question for jury whether promise of quarry company was original so as to bind it, or merely collateral and thus coming under statute. Enos v. Owens Slate Co., 107 Vt. 125, 176 A. 121 (1934), same case 104 Vt. 329, 160 A. 185, 20 A.L.R.2d 250, 270.

Terms imposed by court.

Where court of chancery imposed terms upon party under their rules, and solicitor of party amerced promised solicitor of other party that he would pay amount imposed, if he would consent to entry “terms complied with,” such promise was sufficient consideration, and was not required by statute to be in writing. Sampson v. Swift, 11 Vt. 315, 1839 Vt. LEXIS 77 (1839).

Work by subcontractor.

Oral promise by owners to pay for work done on house by subcontractor was not within statute where promise was primary or original, and not secondary or collateral. Pocket v. Almon, 90 Vt. 10, 96 A. 421, 1916 Vt. LEXIS 228 (1916).

—Generally.

Oral promise to pay another’s debt out of debtor’s funds when they came into hands of promisor, in consideration of creditor’s agreement to refrain from suing upon debt and trusteeing funds before they were paid to promisor, was not within statute. Pirie v. Granite Sav. Bank & Trust Co., 91 Vt. 304, 100 A. 676, 1917 Vt. LEXIS 248 (1917).

Where debtor placed property of any kind in hands of third person and that person promised to pay debt, such promise was not within statute. Bailey v. Bailey, 56 Vt. 398, 1883 Vt. LEXIS 132 (1883).

—Generally.

Issue of whether a special promise to answer for the debt, default or misdoings of another is original and not under the Statute of Frauds, or whether it is collateral, is usually a factual issue, and the new promise is original if it contemplates a discharge of the first contracting party and substitution of the party involved in the new contract. Pike Indus., Inc. v. Middlebury Associates, 136 Vt. 588, 398 A.2d 280, 1979 Vt. LEXIS 921 (1979).

This section applies to, inter alia, a special promise to answer for the debt, default or misdoings of another; an original promise, however, is unaffected by this section, and thus can be oral. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

A promise is original and not within this section when leading object of promisor is to subserve some interest or purpose of his own notwithstanding that effect is to pay or discharge debt of another. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

Oral assurances by producers to pay debts of joint venture formed by them to operate cheese processing plant was an “original promise” unaffected by this section when such oral assurances enabled producers to continue legally disposing of whey after joint venture breached its agreement with hauler. Contractor's Crane Service, Inc. v. Vermont Whey Abatement Authority, 147 Vt. 441, 519 A.2d 1166, 1986 Vt. LEXIS 443 (1986).

An original promise to answer for the debt of another is enforceable because it is supported by new consideration, that is the promise must benefit or operate as an advantage to the party making it; a collateral promise is unenforceable because it is simply gratuitous. Lussier v. Stevens, 153 Vt. 362, 571 A.2d 666, 1989 Vt. LEXIS 250 (1989).

If oral promise is original, Statute of Frauds does not prevent recovery, but if collateral, statute is bar. Enos v. Owens Slate Co., 104 Vt. 329, 160 A. 185 (1931), same case 107 Vt. 125, 176 A. 121; Keyes & Co. v. Allen, 65 Vt. 667, 27 A. 319, 1893 Vt. LEXIS 112 (1893); Greene v. Burton, 59 Vt. 423, 10 A. 575 (1887); Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Bradley v. Richardson, 23 Vt. 720, 3 F. Cas. 1159, 1851 U.S. App. LEXIS 388 (1851); Peck v. Thompson, 15 Vt. 637, 1843 Vt. LEXIS 101 (1843).

To bring case within provision of statute, it is necessary that undertaking should be collateral to liability of another. Eddy v. Davidson, 42 Vt. 56, 1869 Vt. LEXIS 39 (1869); Steele v. Towne, 28 Vt. 771, 1856 Vt. LEXIS 122 (1856); Wainwright v. Straw, 15 Vt. 215, 1843 Vt. LEXIS 33 (1843).

When by accession and agreement of all parties interested, original or intermediate debt is extinguished, promise to pay amount thereof to third party is not promise to answer for debt of another within statute, as no such debt exists, it being new, original, and independent engagement, founded on merger and extinguishment of pre-existing debt or demand. Williams v. H.A. Little & Co., 35 Vt. 323, 1862 Vt. LEXIS 44 (1862); Templeton v. Bascom, 33 Vt. 132, 1860 Vt. LEXIS 78 (1860).

As general rule, verbal promise to pay debt of another is collateral and within statute if debtor continues liable after promise is made. Conti v. Johnson, 91 Vt. 467, 100 A. 874, 1917 Vt. LEXIS 268 (1917).

Where plaintiff claimed to recover payment from defendant for services rendered third person, and it appeared, that defendant, previous to rendition of services, promised to be responsible for the amount, and plaintiff supposed he was working for defendant, and charged his services to defendant, undertaking of defendant was original, and not collateral, and he was liable to plaintiff for amount of his account. Arbuckle v. Hawks, 20 Vt. 538, 1848 Vt. LEXIS 74 (1848).

Promise of assignee to keep assigned property for benefit and security of certain sureties of assignor was original undertaking and not within statute. Merrill v. Englesby, 28 Vt. 150, 1855 Vt. LEXIS 152 (1855).

An undertaking that if A. would work for B., defendant would pay him if B, did not, was within statute. Aldrich v. Jewell, 12 A. 125 (1840).

—Generally.

Guaranty of a future liability is within statute. Mead, Mason & Co. v. Watson, 57 Vt. 426, 1885 Vt. LEXIS 74 (1885).

—Generally.

Oral promise to pay another’s debt out of debtor’s funds when they came into hands of promisor, in consideration of creditor’s agreement to refrain from suing upon debt and trusteeing funds before they were paid to promisor, was not within statute. Pirie v. Granite Sav. Bank & Trust Co., 91 Vt. 304, 100 A. 676, 1917 Vt. LEXIS 248 (1917).

Where debtor placed property of any kind in hands of third person and that person promised to pay debt, such promise was not within statute. Bailey v. Bailey, 56 Vt. 398, 1883 Vt. LEXIS 132 (1883).

IV. CONSIDERATION OF MARRIAGE.

Conveyance against creditors.

Oral antenuptial agreement of debtor to pay his wife $5,000, not being enforceable because of the statute of frauds, was not sufficient consideration for conveyance to her as against his creditors, although it was made for purpose of raising money, and she refused to execute a mortgage therefor unless it was made to her. Jones v. Williams, 94 Vt. 175, 109 A. 803, 1920 Vt. LEXIS 187 (1920).

Part performance.

Marriage was not part performance of antenuptial agreement to pay his wife $5,000, and did not take it out of statute. Jones v. Williams, 94 Vt. 175, 109 A. 803, 1920 Vt. LEXIS 187 (1920).

Reduction to writing.

Oral antenuptial contract, by being reduced to writing after marriage, was taken out of statute, and could be enforced. Smith & Nye v. Munsell, 94 Vt. 201, 110 A. 12, 1920 Vt. LEXIS 191 (1920).

Validity of contract.

Oral contract in consideration of marriage was not illegal or void, statute only affecting matter of evidence by which such contract may be proved. Smith & Nye v. Munsell, 94 Vt. 201, 110 A. 12, 1920 Vt. LEXIS 191 (1920).

V. PERFORMANCE NOT TO BE WITHIN YEAR.

Generally.

Memorandum in writing is necessary only when it appears by whole tenor of agreement that it is not to be performed within year. Blanchard v. Weeks, 34 Vt. 589, 1861 Vt. LEXIS 101 (1861).

Where verbal contract is to be performed within year by one party, but not by other, question whether statute applies or not depends on whether suit is brought against party who was to perform his part within year, and if it is so brought, statute would not apply, but if brought against party whose agreement was not to be performed within year, then statute would be bar. Sheehy v. Adarene, 41 Vt. 541, 1869 Vt. LEXIS 4 (1869).

Even when contract in terms extended beyond one year, if obligation to pay on one side depended on use conceded by other, party who had enjoyed such use for succession of years could not defeat action for stipulated compensation for that time on ground of statute. Sherman v. Champlain Transp. Co., 31 Vt. 162, 1858 Vt. LEXIS 124 (1858).

Clearing land.

Contract to clear 80 acres of land—ten acres the first year, and then five each year—was within statute, as it was not to be performed within year. Sheldon v. Preva, 57 Vt. 263, 1884 Vt. LEXIS 28 (1884).

Complete performance.

In an action in which plaintiff alleged that an oral agreement required plaintiff to transfer his ownership of a quarry to a slate company and that the agreement required defendants to grant plaintiff a one-half interest in the slate company after two years, dismissal of the breach of contract claim based on 12 V.S.A. § 181(4) or (5) of the Statute of Frauds was unwarranted because plaintiff alleged that he performed his part of the bargain in full. Harrison v. Hill, 2008 U.S. Dist. LEXIS 56076 (D. Vt. July 23, 2008).

Complete performance by one of the parties to an alleged oral agreement takes the agreement out of the one-year provision of subdivision (4) of this section. Mason v. Anderson, 146 Vt. 242, 499 A.2d 783 (1985), overruling Parks v. Francis’s Administrator (1878) 50 Vt. 626, 1878 Vt. LEXIS 24.

Contract for care.

Where contract between sister and brother whereby sister was to care for their mother, and brother was to pay her therefor, was personal contract of sister, to be performed by her alone and not binding upon her representative or any other person, and terminated at death of either mother or sister unless sooner ended in some legal way, so that it might be fully performed within one year, statute did not apply thereto. Lawrence v. Stewart, 109 Vt. 333, 196 A. 750, 1938 Vt. LEXIS 139 (1938).

Definitions.

Word “performed” meant full performance or complete execution. Squire v. Whipple, 1 Vt. 69, 1826 Vt. LEXIS 7 (1826).

Election or contingency.

When consummation of contract depends on election of one party or any other contingency, which may happen within year, such contract is not within statute. Sherman v. Champlain Transp. Co., 31 Vt. 162, 1858 Vt. LEXIS 124 (1858).

—Generally.

If agreement was not to be performed within one year, no recovery could be had upon it, although that which formed consideration of agreement was to have been, and was paid or performed within that period; and no recovery could be had for or on consideration so paid or performed unless it enured to benefit of defendant. Pierce v. Estate of Paine, 28 Vt. 34 (1855), same case 34 Vt. 229, 59 A.L.R. 1306, 6 A.L.R.2d 1121.

Where contract was to be performed, in part within one year, and in part thereafter, whole was void by force of statute. Foote & Stone v. Emerson, 10 Vt. 338, 1838 Vt. LEXIS 73 (1838).

Work and labor.

Where contract for work and labor was to be begun, but not completed within one year from making thereof, it was within statute. Hinckley v. Southgate, 11 Vt. 428, 1839 Vt. LEXIS 94 (1839).

—Generally.

Nature of the undertaking governs applicability of the Statute of Frauds, not the capacity to comply, so that where, by its terms, oral promise could be performed within one year, promisor’s argument that due to his strained financial position he was not capable of performing within a year was to no avail. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where it was orally promised that loan made in May, 1969, would be repaid either in January of 1970, or upon receipt of borrower’s tax refund for the taxable year 1969, either alternative was sufficient to take promise out of the Statute of Frauds, as by its terms the agreement was capable of being performed within one year. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where money was loaned for a “long period of time,” the repayment could have been within a year and the Statute of Frauds did not apply; and that the time of performance was uncertain or could have extended beyond a year did not make the statute applicable. Bonfanti v. Ayers, 134 Vt. 421, 365 A.2d 268, 1976 Vt. LEXIS 693 (1976).

Oral agreement which, according to intention of parties, as shown by terms of contract, may be fully performed within a year from the time it is made, is not within statute, although time of its performance is uncertain, and may probably extend, and be expected by parties to extend beyond year; and this rule applies to a particular contract although in fact performance is not had within the year. Beattie v. Traynor, Adm’r, 114 Vt. 495, 49 A.2d 200 (1946), same case 114 Vt. 238 42 A.2d 435, 31 A.L.R.2d 994, 1008, 1017, 49 A.L.R.2d 1294; Blanchard v. Weeks, 34 Vt. 589, 1861 Vt. LEXIS 101 (1861).

—Generally.

If agreement was not to be performed within one year, no recovery could be had upon it, although that which formed consideration of agreement was to have been, and was paid or performed within that period; and no recovery could be had for or on consideration so paid or performed unless it enured to benefit of defendant. Pierce v. Estate of Paine, 28 Vt. 34 (1855), same case 34 Vt. 229, 59 A.L.R. 1306, 6 A.L.R.2d 1121.

Where contract was to be performed, in part within one year, and in part thereafter, whole was void by force of statute. Foote & Stone v. Emerson, 10 Vt. 338, 1838 Vt. LEXIS 73 (1838).

—Generally.

Nature of the undertaking governs applicability of the Statute of Frauds, not the capacity to comply, so that where, by its terms, oral promise could be performed within one year, promisor’s argument that due to his strained financial position he was not capable of performing within a year was to no avail. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where it was orally promised that loan made in May, 1969, would be repaid either in January of 1970, or upon receipt of borrower’s tax refund for the taxable year 1969, either alternative was sufficient to take promise out of the Statute of Frauds, as by its terms the agreement was capable of being performed within one year. Frigon v. Whipple, 134 Vt. 376, 360 A.2d 69, 1976 Vt. LEXIS 680 (1976).

Where money was loaned for a “long period of time,” the repayment could have been within a year and the Statute of Frauds did not apply; and that the time of performance was uncertain or could have extended beyond a year did not make the statute applicable. Bonfanti v. Ayers, 134 Vt. 421, 365 A.2d 268, 1976 Vt. LEXIS 693 (1976).

Oral agreement which, according to intention of parties, as shown by terms of contract, may be fully performed within a year from the time it is made, is not within statute, although time of its performance is uncertain, and may probably extend, and be expected by parties to extend beyond year; and this rule applies to a particular contract although in fact performance is not had within the year. Beattie v. Traynor, Adm’r, 114 Vt. 495, 49 A.2d 200 (1946), same case 114 Vt. 238 42 A.2d 435, 31 A.L.R.2d 994, 1008, 1017, 49 A.L.R.2d 1294; Blanchard v. Weeks, 34 Vt. 589, 1861 Vt. LEXIS 101 (1861).

VI. SALE OF LANDS OR INTEREST THEREIN.

Adverse possession.

Where an interest in land was alleged to have arisen by adverse possession, the Statute of Frauds was not a bar to the admission of parol evidence concerning the transactions that showed when possession became adverse. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

—Generally.

Statute provides mode and means by which an agent shall receive authority to make a contract or agreement relating to sale of land, etc., and he cannot be authorized by any other mode, unless statute is waived. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Statute is good defense to an executory contract for sale of lands owned by husband and wife where contract was signed by husband alone and without proper authorization from wife. Hathaway v. Fernandez, 117 Vt. 234, 89 A.2d 117, 1952 Vt. LEXIS 129 (1952).

When landowners’ attorney in fact told purchasers that he had no legal right to convey owners’ land to them but that he would try to make it as legal as possible under power of attorney in fact and purchasers had common intention of making out a deed that would create an illusion of title so that purchasers might finance house trailer which they wished to place on the lot, it was inappropriate to give weight to considerations of reliance and prejudice in favor of purchasers who moved onto the land and made certain improvements. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Under statute, if wife was to be held as a joint contractor on executory contract for sale of real estate, she must have signed contract, either by her own hand or by agent duly authorized in writing, and she was not bound by such contract to which her husband signed her name in absence of proof that he had written authority so to do. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Fact that wife, whose husband without written authority signed her name to contract for sale of real estate, received copy of contract from her husband and filed it, that she was satisfied with contract and may have so informed her husband, and that she was willing to go on with it at time of trial of action for breach thereof, was held not to constitute waiver of defect therein under statute. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Wife was not estopped from setting up Statute of Frauds as defense by her acts and statements upon which plaintiff placed no reliance and of which he had no knowledge. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Husband did not waive any rights to rely on statute, nor was he estopped to assert them, because he said nothing about statute when he signed or thereafter. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

In suit for specific performance of an agreement for sale of land, made by one tenant in common thereof for himself and his co-tenant, evidence was to show that former had latter’s authority to sign written contract for sale of his interest in land. Vermont Marble Co. v. Mead, 85 Vt. 20, 80 A. 852, 1911 Vt. LEXIS 202 (1911).

Construction.

This section requires that for a contract for the sale of lands to be enforceable, the contract or some memorandum thereof must be in writing and signed by the party to be charged. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

Statute, in reference to the sale of lands is applicable to actions brought to enforce rights dependent upon and resulting from contract, and in which it must be proved though not counted upon, and not merely to those actions in which contract must necessarily be set out in declaration. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

In order to hold sellers of land at auction to specific performance of their agreement to convey, they must either have personally signed a written agreement to sell, or have duly authorized in writing an agent to sign for them. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

This provision has been construed to require any ratification of the unauthorized act of an agent respecting a sale of an interest in lands to also be in writing. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

—Generally.

Where change in closing date requested by the vendors of real property was, in effect, a counter-offer requiring purchaser’s assent, and counter-offer was never reduced to writing and forwarded to purchaser for her signature and formal consent before she declared transaction terminated, although she did generally agree to a change in date for closing, agreement in question could have no legal consequences until formally executed, and therefore, no enforceable contract incorporating the changed closing date existed. Evarts v. Forte, 135 Vt. 306, 376 A.2d 766, 1977 Vt. LEXIS 614 (1977).

A contract involving the sale of land is controlled by this section. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

Purchase and sales agreement executed by plaintiff for purchase of land which differed materially from a counteroffer previously made by seller was not enforceable since seller, the party to be charged, never signed the proposed document and was not the offeror of the agreement. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

The fact that defendants admitted to the existence of an oral contract involving the sale of land did not take the contract outside subdivision (5) of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Interests in land created by the operation of law are not included in the term “contract for sale” in the Statute of Frauds. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

No action will lie on oral contract for sale of real estate. Bedell v. Tracy, 65 Vt. 494, 26 A. 1031, 1892 Vt. LEXIS 32 (1892).

Contract for sale of land, not being reduced to writing and signed by parties, was within statute. Welch v. Darling, 59 Vt. 136, 7 A. 547, 1886 Vt. LEXIS 10 (1886).

One may admit sale of land by verbal contract, and yet defend and action for specific performance by pleading Statute of Frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Sales by auction, unless expressly exempted, are within statute of frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Where plaintiff’s house being mortgaged, he entered into parol contract with defendant to purchase mortgage, sell house, and after satisfying the mortgage debt, costs, etc., to pay the balance to plaintiff, and defendant purchased as agreed, foreclosed, and sold house, plaintiff in reliance on contract allowing equity of redemption to expire, it was held that plaintiff in assumpsit could recover balance and that contract was not within statute, in that it was not for sale of lands or an interest in or concerning them. McGinnis v. Cook, 57 Vt. 36, 1885 Vt. LEXIS 42 (1885).

Agreement between plaintiff and defendant to purchase and sell real estate and divide profits from sale though not in writing, was not within statute. Bruce v. Hastings, 41 Vt. 380, 1868 Vt. LEXIS 131 (1868).

Division line between lands.

Acquiescence in a wrong boundary line will not establish it as the true boundary unless the demands of the statute of frauds or adverse possession are met. Haklits v. Oldenburg, 124 Vt. 199, 201 A.2d 690, 1964 Vt. LEXIS 83 (1964).

An award or arbitrators in reference to division line between adjoining lands owned by different proprietors made on submission by parol had same effect as a parol agreement between the parties in reference to the same line would have, and was within statute. Smith v. Bullock, 16 Vt. 592, 1844 Vt. LEXIS 133 (1844).

Equity of redemption.

Although agreement as to equity of redemption between the orators and defendant was oral, it appearing that the orators were willing and offered to redeem and that defendant refused to carry out the agreement, defendant is estopped in equity from denying the orator’s right to redeem, notwithstanding statute of frauds. Phelps v. Root, 78 Vt. 493, 63 A. 941, 1906 Vt. LEXIS 181 (1906).

Farm.

An oral agreement for sale of interest in farm was within statute. David v. Farr, 26 Vt. 592, 1854 Vt. LEXIS 55 (1854).

Where plaintiff and defendant made parol contract that former should convey to latter a farm for certain price, and that if plaintiff could within a year find a purchaser at higher price, defendant should convey the farm to such purchaser, and that plaintiff should have one-half the gain so made, contract was within statute. Ballard v. Bond, 32 Vt. 355, 1859 Vt. LEXIS 109 (1859).

Where one makes verbal contract for sale of his farm, and then repudiates it, he cannot invoke aid of statute to enable him to retain what he received under such contract. Gifford v. Willard, 55 Vt. 36, 1883 Vt. LEXIS 8 (1883).

Guaranty.

Contract of guaranty, being part of contract for sale of land, for an aggregate and indivisible consideration, was within statute, and being by parol, could not be enforced by action. Dyer v. Graves, 37 Vt. 369, 1864 Vt. LEXIS 110 (1864).

Lease.

Where evidence presented by lessor was sufficient for a jury to reasonably find that a lease proposal between lessor and lessee was an enforceable contract, the lease proposal could be proven to be a valid modification of the prior lease agreement, in writing and signed by the party to be charged in compliance with the statute of frauds. Heathcote Assocs. v. Chittenden Trust Co., 958 F. Supp. 182, 1997 U.S. Dist. LEXIS 3703 (D. Vt. 1997).

Oral agreement to extend written lease for one year would be inadmissible as within Statute of Frauds. Amsden v. Atwood, 68 Vt. 322, 35 A. 311 (1895), same case 67 Vt. 289, 31 A. 448.

In an action of “justice ejectment”, though there was no written agreement in respect of defendant’s occupancy of the premises in question, plaintiff could not insist on statute of frauds. Wheeler v. Wheeler, 77 Vt. 177, 59 A. 842, 1905 Vt. LEXIS 107 (1905).

Memorandum.

Where town and plaintiff orally contracted for the sale of land and plaintiff rejected deed because it reserved 2 of the 80 acres to town for a dump without providing that the two acres would revert to plaintiff upon discontinuance of the dump, letter by town to plaintiff, after town voted against the sale at the town meeting, describing the transaction, refusing to sell and not mentioning a reversionary interest, was not a memorandum of the agreement claimed by plaintiff and thus could not support specific performance or satisfy the Statute of Frauds. Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408, 1974 Vt. LEXIS 274 (1974).

Written statements relative to the boundaries of certain land were held not sufficient as memorandum to answer requirements of statute, because they did not contain substantial terms of any contract for sale of land, or of an interest in land, expressed with such certainty that they might be understood from contract itself or from some writing to which it referred, without resorting to parol evidence. Vermont Marble Co. v. Eastman, 91 Vt. 425, 101 A. 151, 1917 Vt. LEXIS 267 (1917).

—Generally.

An exception to the rule that a contract involving the sale of land or interests therein must be in writing exists where a party demonstrates that he or she is equitably entitled to the claimed interest in land. In such cases, enforcement is justified on the ground that repudiation by one party after the other has fully performed amounts to a virtual fraud. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where defendant sold and delivered stoves to orator, for which orator paid him thousand dollars in money, and executed and tendered to him a deed of certain land that defendant agreed to, but would not take in payment of balance, contract was fulfilled and performed by orator, and nothing was left open for Statute of Frauds to operate upon. Adams v. Smilie, 50 Vt. 1, 1877 Vt. LEXIS 48 (1877).

In an action on contract for sale of certain standing timber, writing signed by plaintiff but not by defendants, whereby he sold them timber and gave them six months in which to remove it and under which they entered upon land and cut all timber involved in suit and removed some and left the rest, was admissible, as against statute, since defendants by entering and acting under writing adopted it and became bound by it as if they had signed it. Ross v. Hamilton, 95 Vt. 234, 113 A. 781, 1921 Vt. LEXIS 206 (1921).

Mortgage agreements.

Agreement to mortgage was within the Statute of Frauds. Chickering v. Brooks, 61 Vt. 554. Chickering v. Brooks, 61 Vt. 554, 18 A. 144, 1889 Vt. LEXIS 86 (1889).

Agreement by mortgagee that mortgagor may remain in possession until condition broken, or that he will reconvey premises upon payment of mortgage was not within statute. Mussey v. Bates, 65 Vt. 449, 27 A. 167, 1892 Vt. LEXIS 31 (1892).

Parol agreement by vendor with vendee of land, to remove mortgage thereon, given to secure the debt of another, was not within statute. Green v. Randall, 51 Vt. 67, 1878 Vt. LEXIS 123 (1878).

Agreement for execution of deed of release of portion of mortgaged premises from mortgage was agreement for the sale of land and within statute. Merrill v. Pease, 51 Vt. 556, 1879 Vt. LEXIS 123 (1879).

Option to buy.

Contract granting to another an option to buy land is an agreement concerning land, and is within Statute of Frauds. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947).

Part performance.

To fall within the exception to the rule that a contract involving the sale of land or interests therein must be in writing, it was necessary for plaintiff to show that: (1) there was an oral agreement (2) upon which he reasonably relied (3) by changing his position so that he could not be returned to his former position, and (4) the other party knew of such reliance. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where plaintiff who had acquired a deeded right of first refusal to purchase a lot owned by defendants failed to show that there was a separate and distinct oral agreement regarding the right of first refusal, that he made a substantial and irretrievable change in position in reliance on the agreement, or that he fully performed any obligations under the alleged agreement, and the undisputed evidence, viewed in plaintiff’s favor, was that both plaintiff and defendants misunderstood the terms of plaintiff’s deed, the trial court properly found enforcement of plaintiff’s claimed oral agreement barred by the Statute of Frauds. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where there is an oral contract for the sale of land, a purchasing party who is in possession of the land and who makes substantial improvements to the property is entitled to specific performance of the agreement, and this may take the oral contract out of the Statute of Frauds. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Money payments or actions that are indistinguishable from those of a tenant responsible for the maintenance of the leased premises are not sufficient to remove the agreement from the requirements in the Statute of Frauds. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Where vendor and vendee entered into an oral purchase agreement which provided that upon payment of entire purchase price a deed conveying summer camp was to be given to vendee, and thereafter vendee made down payment and was given possession of premises by vendor, it could not be said that possession of this type of property coupled with a fractional payment of the purchase price was such part performance as would take the oral contract out of the Statute of Frauds, nor was there any proof or finding of the elements essential to the intervention of a court of equity. Troy v. Hanifin, 132 Vt. 76, 315 A.2d 875, 1974 Vt. LEXIS 303 (1974).

Where facts supported lower court’s determination that activities of proposed purchased under oral contract for sale of land, in making improvements on the premises, were entirely assignable to his situation as licensee, there was no part performance removing the contract from the Statute of Frauds. Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408, 1974 Vt. LEXIS 274 (1974).

Validation of oral contract to convey real estate, in spite of prohibition against enforcement found in Statute of Frauds, depends on doctrine of part performance and since real issue is change of position by party claiming relief in reliance on the oral agreement to such a measure that parties cannot be restored to reasonable equivalence to their former condition, it is a requirement that reliance be something beyond injury adequately compensable in money. Jasmin v. Alberico, 135 Vt. 287, 376 A.2d 32, 1977 Vt. LEXIS 610 (1977).

Although oral contract to convey real estate may be taken out of Statute of Frauds by party in possession having made substantial improvements, such improvements to property as repairing back porch, having gas piped to house, making electrical and plumbing repairs, doing some landscaping and installing two stoves for heating purposes were indistinguishable from activities of a tenant responsible for maintenance of leased premises and simply did not meet the test of a substantial and irretrievable change of position set out in the case law. Jasmin v. Alberico, 135 Vt. 287, 376 A.2d 32, 1977 Vt. LEXIS 610 (1977).

Such performance under an oral contract as will make it a fraud to apply the prohibition of this section supports equitable relief and makes the contract enforceable; and party seeking enforcement of the contract need not show he has been defrauded, but rather, that his acts in reliance upon the agreement, known to the other party to the agreement, so altered the relations of the parties as to prevent restoration to their former condition. Nichols v. Nichols, 139 Vt. 273, 427 A.2d 374, 1981 Vt. LEXIS 451 (1981).

Where, for many years, son and his wife fully performed their part of oral contract whereby mother agreed to convey to them the family farm if, during the remainder of her life, they would operate the farm and care for her, there was such performance under the oral contract as would make it a fraud to apply the prohibition of this section. Nichols v. Nichols, 139 Vt. 273, 427 A.2d 374, 1981 Vt. LEXIS 451 (1981).

The fact that plaintiffs made financing arrangements and conducted a title search did not make the doctrine of part performance applicable in an action for specific performance of an alleged oral agreement for the sale of land where defendants sets up subdivision (5) of this section as a defense. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Money payments on the purchase are not enough to give an oral agreement enforceable status, even coupled with possession, in the face of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Part performance of contract will never enable party to sustain action at law in direct violation of terms of statute. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947); Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Under Statute of Frauds, where consideration itself is executory and touching land, mere execution of agreement on the other side is not sufficient to take the case out of statute. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Payment of purchase price by buyer is not by itself sufficient to remove case from statute. Carvage v. Stowell, 115 Vt. 187, 55 A.2d 188, 1947 Vt. LEXIS 98 (1947).

Where plaintiff had rendered services in part performance and consideration of parol contract for purchase of land, he could not rescind such contract and treat it as void and recover for said services unless defendant was unable or unwilling to proceed. Shaw v. Shaw, 6 Vt. 69, 1834 Vt. LEXIS 14 (1834).

Part performance as ground for relief in equity, see note 327.

Price.

Notwithstanding general terms of statute, when land has been sold and conveyed to purchaser, seller may maintain an action to recover price, though not evidenced by any writing, upon ground that all of contract which is required by statute to be in writing has been fully executed and performed and that promise to pay the money does not come within statute. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

Under statute, in absence of written memorandum, recovery of purchase price is allowed only when transaction has been otherwise fully executed. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848, 1956 Vt. LEXIS 100 (1956).

An action, which merely concerns the price of land, is not required, by the Statute of Frauds, to be sustained by evidence of an agreement in writing. Hodges v. Green, 28 Vt. 358, 1856 Vt. LEXIS 40 (1856); Thayer v. Viles & Atkins, 23 Vt. 494, 1851 Vt. LEXIS 56 (1851).

In contract for sale of real estate, a deed of which is executed and delivered, promise by purchaser to pay the consideration or furnish security for it, is not within statute and, if only by parol, an action may be maintained on it. Ascutney Bank v. Ormsby, 28 Vt. 721, 1856 Vt. LEXIS 110 (1856).

Procuring purchaser.

Where agreement between parties was not for the sale of land, but for the procuring of a purchaser for land, it did not fall within the strictures of the Statute of Frauds. Kelly v. Beaudoin, 131 Vt. 27, 298 A.2d 831, 1972 Vt. LEXIS 229 (1972).

Profit a prendre.

Profit a prendre is an interest in the land itself and within scope of statute. Theberge v. Canadian Pac. Ry., 119 Vt. 193, 122 A.2d 848 (1956). See also note 322 infra.

Ratification.

Under Statute of Frauds, if an agent has oral authorization only, ratification must be in writing. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Written ratification of authority to execute contract need not be formal document, nor addressed or delivered to other party to contract, but is sufficient to satisfy statute if it recognizes existence of contract and either expressly or impliedly approves it. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Unauthorized sale by landowners’ attorney in fact of interest in owners’ land under power of attorney given by owners for limited purpose not including such a sale was invalid under this section in absence of any pleading or proof of an oral or written ratification of the sale by owners, and thus owners could not be held to have waived any objection to the purported sale. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Provision of this section requiring contract for sale of land to be in writing requires any ratification of the unauthorized act of an agent respecting a sale of an interest in lands to be in writing. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

—Generally.

This section can be used as a defense to actions at law, but was not available where claim was based on fraud and sought equitable relief with respect to title to land. Stamato v. Quazzo, 139 Vt. 155, 423 A.2d 1201, 1980 Vt. LEXIS 1500 (1980).

Part performance of contract for sale of land is ground of relief in equity, and there court proceeds mainly on the basis of relief from fraud. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947); Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Where contract was for sale of lands on both sides, and was not in writing, no action at law could ever be maintained upon it, and part performance of such a contract was ground of relief in equity only, and there, on principle of relieving from fraud. Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Contract for sale of land was not taken out of statute by part performance, unless such performance be made under such circumstance as to amount to fraud, against which court of equity will relieve, nor even then unless such part performance be expressly stated in bill. Meach v. Stone, 1 D. Chip. 182 (Vt. 1814).

Removal of building.

Contract to take down building standing on land of plaintiff and re-erect frame on land of defendant was not within statute as sale of interest in land. Scales v. Wiley, 68 Vt. 39, 33 A. 771, 1895 Vt. LEXIS 9 (1895).

Specific performance.

The trial court did not abuse its discretion in awarding specific performance on an oral contract where its findings supported a determination that the prospective purchasers, in reliance on the agreement to purchase, suffered a substantial and irretrievable change in position. Quenneville v. Buttolph, 2003 VT 82, 175 Vt. 444, 833 A.2d 1263, 2003 Vt. LEXIS 268 (2003).

Where claimants alleged that they had an oral agreement with decedent such that they would receive 88 acres of farmland at her death if they cared for her and her home and paid her $350 per month and one-half the taxes on entire farm until her death, and that they fully performed under, and changed their position in various ways in reliance on, this agreement, it could not be held, as a matter of law, that these alleged facts did not rise to the level that would allow equity to enforce specific performance. In re Estate of Gorton, 167 Vt. 357, 706 A.2d 947, 1997 Vt. LEXIS 284 (1997).

Where specific performance of an oral contract to convey real estate is sought, the proponent of specific performance must establish an agreement enforceable in the face of Statute of Frauds, and if that burden is met, the contract is still subject to the standards for specific performance. Jasmin v. Alberico, 135 Vt. 287, 376 A.2d 32, 1977 Vt. LEXIS 610 (1977).

In action for specific performance of contract for sale of real estate, where plaintiff offered written memorandum of the oral contract of sale, signed by original administrator of estate, setting forth the terms of the contract, and also alleged, both in complaint and in answers to interrogatories, partial performance, and defendant in answer asserted that contract was oral and that claim was therefore barred by this section, facts took plaintiff’s case out of this section, rendered grant of summary judgment for defendant improper, and indicated as a matter of law that plaintiff was entitled to summary judgment. Martin v. Eaton, 140 Vt. 134, 436 A.2d 751, 1981 Vt. LEXIS 584 (1981).

When verbal purchase and payment for real estate is followed by possession, with consent of vendor, equity will treat case as without statute and decree conveyance. Whitcher v. Morey, 39 Vt. 459, 1867 Vt. LEXIS 34 (1867).

Where defendant relying on applicable provision of Statute of Frauds making oral contracts for sale of lands subject to evidentiary exclusion, plaintiff in bringing action for specific performance by defendant to purchase plaintiff’s filling station property, had to convince chancellor that equitable considerations justified taking contract out from under Statute of Frauds and then had to justify, as a seller, having contract specifically enforced. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

Preparation of proposed transfer of title including arrangements to discharge incumbrances at time of sale, verification of the bounds of the lot were not the kind of imposition to support granting specific performance of contract against defendant. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

In suit by plaintiff for specific performance of contract by defendant for sale of plaintiff’s filling station property, plaintiff had burden of showing that acts of his, done in reliance on the agreement and known to defendant, so altered relations of parties as to prevent restoration to their former condition. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

Plaintiff, seeking specific performance of contract by defendant to purchase plaintiff’s filling station property, was bound to introduce evidence supporting proposition that insistence on the requirements of the Statute of Frauds would, in effect, be using that statute to promote, rather than prevent, fraud. Towsley v. Champlain Oil Co., 127 Vt. 541, 254 A.2d 440, 1969 Vt. LEXIS 271 (1969).

Payment of purchase price of real estate by buyer is not by itself sufficient to justify decree for specific performance and it is only when possession has been given and the contract so far performed that it would be fraud on purchaser to deny specific performance that such relief will be granted. Carvage v. Stowell, 115 Vt. 187, 55 A.2d 188, 1947 Vt. LEXIS 98 (1947).

Verbal contract for sale of standing trees will be specifically enforced by cross-bill, when contract is admitted in answer, and statute is not correctly pleaded. Battell v. Matot, 58 Vt. 271, 5 A. 479, 1885 Vt. LEXIS 34 (1885).

Where it is stated generally in bill to obtain specific performance that an agreement was made for the sale of land, defense of statute may be set up by plea, but benefit of statute must be claimed therein. Cooley v. Hatch, 97 Vt. 484, 124 A. 589, 1924 Vt. LEXIS 188 (1924).

In suit in equity to obtain specific performance of an oral promise to convey real estate, the burden is upon plaintiff to show that in reliance upon such agreement, and to the knowledge of defendant he has done such acts in part performance, as will take case out of statute and warrant court in decreeing specific performance; and where court cannot say, from facts reported, that such acts have been performed by plaintiff, decree will be refused. Cooley v. Hatch, 97 Vt. 484, 124 A. 589, 1924 Vt. LEXIS 188 (1924).

While in cases where there is an entire agreement for sale of real and personal estate whole contract might be rendered inoperative as to both, by means of statute, yet, in equity, though it may be otherwise at law, contract will, in many instances, when partly executed, be upheld. Smith v. Smith, 14 Vt. 440, 1842 Vt. LEXIS 77 (1842).

Where it appeared that oratrix went into possession of house and lot, and made substantial improvements thereon, under an oral contract with her son, who owned land, that she was to furnish the materials for building house, and he was to do part of the work, which he did, and also furnished some of materials for the house, and that premises should be conveyed to oratrix, and there was no finding that son had any claim for services nor for materials furnished, equity would decree specific performance against the son’s administrator, and statute was no defense. Gove v. Gove's Adm'r, 88 Vt. 115, 92 A. 10, 1914 Vt. LEXIS 196 (1914).

Where oratrix entered into parol contract for conveyance of house, paid for it and occupied the tenement in the upper story, without rent, for more than four years, agreeing that original owners should collect rent of the lower tenement for her, case was taken out of operation of statute and oratrix was entitled to decree for conveyance of premises and an accounting for rent. Holmes v. Caden, 57 Vt. 111, 1884 Vt. LEXIS 6 (1884).

Where defendant’s possession was not that of purchase and improvements resulting from his labor were not for his benefit, case lacked features essential to bring it within rule that under parol contract for sale of interest in land and there has been such part performance that purchaser cannot be compensated in damages, case is taken out of statute in equity, so that contract will be specifically enforced. Sheldon v. Preva, 57 Vt. 263, 1884 Vt. LEXIS 28 (1884).

Trees.

Agreement for sale of growing trees, with right in vendee to enter upon the land at a future time, to take and cut them off, as he might want them, was contract for sale of an interest in land, and unless it be in writing, no action could be maintained upon it; nor could it, in any way, be made available, as a contract, so long as it remained executory. Buck v. Pickwell, 27 Vt. 157, 1854 Vt. LEXIS 112 (1854).

While a contract for future growth of trees and beneficial use of land for that purpose, for series of years, or during the pleasure of the vendee, was contract relating to real estate, an ordinary purchase of stumpage by foot or cord, in contemplation of an early removal as chattels, would be different. Fitch v. Burk, 38 Vt. 683, 1866 Vt. LEXIS 49 (1866).

It was not necessary that there should be note or memorandum in writing of contract to cut down and clear away trees on plaintiff’s farm, since this section is confined to transfer of real estate, and words in this section, “or any interest therein, or concerning them”, do not extend statute to contracts respecting labor on lands. Forbes v. Hamilton, 2 Tyl. 356 (Vt. 1803).

—Generally.

Where change in closing date requested by the vendors of real property was, in effect, a counter-offer requiring purchaser’s assent, and counter-offer was never reduced to writing and forwarded to purchaser for her signature and formal consent before she declared transaction terminated, although she did generally agree to a change in date for closing, agreement in question could have no legal consequences until formally executed, and therefore, no enforceable contract incorporating the changed closing date existed. Evarts v. Forte, 135 Vt. 306, 376 A.2d 766, 1977 Vt. LEXIS 614 (1977).

A contract involving the sale of land is controlled by this section. North v. Simonini, 142 Vt. 482, 457 A.2d 285, 1983 Vt. LEXIS 415 (1983).

Purchase and sales agreement executed by plaintiff for purchase of land which differed materially from a counteroffer previously made by seller was not enforceable since seller, the party to be charged, never signed the proposed document and was not the offeror of the agreement. Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 468 A.2d 929, 1983 Vt. LEXIS 563 (1983).

The fact that defendants admitted to the existence of an oral contract involving the sale of land did not take the contract outside subdivision (5) of this section. Chomicky v. Buttolph, 147 Vt. 128, 513 A.2d 1174, 1986 Vt. LEXIS 375 (1986).

Interests in land created by the operation of law are not included in the term “contract for sale” in the Statute of Frauds. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

No action will lie on oral contract for sale of real estate. Bedell v. Tracy, 65 Vt. 494, 26 A. 1031, 1892 Vt. LEXIS 32 (1892).

Contract for sale of land, not being reduced to writing and signed by parties, was within statute. Welch v. Darling, 59 Vt. 136, 7 A. 547, 1886 Vt. LEXIS 10 (1886).

One may admit sale of land by verbal contract, and yet defend and action for specific performance by pleading Statute of Frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Sales by auction, unless expressly exempted, are within statute of frauds. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Where plaintiff’s house being mortgaged, he entered into parol contract with defendant to purchase mortgage, sell house, and after satisfying the mortgage debt, costs, etc., to pay the balance to plaintiff, and defendant purchased as agreed, foreclosed, and sold house, plaintiff in reliance on contract allowing equity of redemption to expire, it was held that plaintiff in assumpsit could recover balance and that contract was not within statute, in that it was not for sale of lands or an interest in or concerning them. McGinnis v. Cook, 57 Vt. 36, 1885 Vt. LEXIS 42 (1885).

Agreement between plaintiff and defendant to purchase and sell real estate and divide profits from sale though not in writing, was not within statute. Bruce v. Hastings, 41 Vt. 380, 1868 Vt. LEXIS 131 (1868).

—Generally.

Statute provides mode and means by which an agent shall receive authority to make a contract or agreement relating to sale of land, etc., and he cannot be authorized by any other mode, unless statute is waived. Couture v. Lowery, 122 Vt. 239, 168 A.2d 295, 1961 Vt. LEXIS 63 (1961).

Statute is good defense to an executory contract for sale of lands owned by husband and wife where contract was signed by husband alone and without proper authorization from wife. Hathaway v. Fernandez, 117 Vt. 234, 89 A.2d 117, 1952 Vt. LEXIS 129 (1952).

When landowners’ attorney in fact told purchasers that he had no legal right to convey owners’ land to them but that he would try to make it as legal as possible under power of attorney in fact and purchasers had common intention of making out a deed that would create an illusion of title so that purchasers might finance house trailer which they wished to place on the lot, it was inappropriate to give weight to considerations of reliance and prejudice in favor of purchasers who moved onto the land and made certain improvements. Campbell v. Blair, 127 Vt. 157, 241 A.2d 791, 1968 Vt. LEXIS 192 (1968).

Under statute, if wife was to be held as a joint contractor on executory contract for sale of real estate, she must have signed contract, either by her own hand or by agent duly authorized in writing, and she was not bound by such contract to which her husband signed her name in absence of proof that he had written authority so to do. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Fact that wife, whose husband without written authority signed her name to contract for sale of real estate, received copy of contract from her husband and filed it, that she was satisfied with contract and may have so informed her husband, and that she was willing to go on with it at time of trial of action for breach thereof, was held not to constitute waiver of defect therein under statute. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Wife was not estopped from setting up Statute of Frauds as defense by her acts and statements upon which plaintiff placed no reliance and of which he had no knowledge. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

Husband did not waive any rights to rely on statute, nor was he estopped to assert them, because he said nothing about statute when he signed or thereafter. Dunbar v. Farnum, 109 Vt. 313, 196 A. 237, 1937 Vt. LEXIS 138 (1937).

In suit for specific performance of an agreement for sale of land, made by one tenant in common thereof for himself and his co-tenant, evidence was to show that former had latter’s authority to sign written contract for sale of his interest in land. Vermont Marble Co. v. Mead, 85 Vt. 20, 80 A. 852, 1911 Vt. LEXIS 202 (1911).

—Generally.

This section can be used as a defense to actions at law, but was not available where claim was based on fraud and sought equitable relief with respect to title to land. Stamato v. Quazzo, 139 Vt. 155, 423 A.2d 1201, 1980 Vt. LEXIS 1500 (1980).

Part performance of contract for sale of land is ground of relief in equity, and there court proceeds mainly on the basis of relief from fraud. McGuirk v. Ward, 115 Vt. 221, 55 A.2d 610, 1947 Vt. LEXIS 105 (1947); Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Where contract was for sale of lands on both sides, and was not in writing, no action at law could ever be maintained upon it, and part performance of such a contract was ground of relief in equity only, and there, on principle of relieving from fraud. Hibbard v. Whitney, 13 Vt. 21, 1841 Vt. LEXIS 3 (1841).

Contract for sale of land was not taken out of statute by part performance, unless such performance be made under such circumstance as to amount to fraud, against which court of equity will relieve, nor even then unless such part performance be expressly stated in bill. Meach v. Stone, 1 D. Chip. 182 (Vt. 1814).

—Generally.

An exception to the rule that a contract involving the sale of land or interests therein must be in writing exists where a party demonstrates that he or she is equitably entitled to the claimed interest in land. In such cases, enforcement is justified on the ground that repudiation by one party after the other has fully performed amounts to a virtual fraud. Rappaport v. Estate of Banfield, 2007 VT 25, 181 Vt. 447, 924 A.2d 72, 2007 Vt. LEXIS 50 (2007).

Where defendant sold and delivered stoves to orator, for which orator paid him thousand dollars in money, and executed and tendered to him a deed of certain land that defendant agreed to, but would not take in payment of balance, contract was fulfilled and performed by orator, and nothing was left open for Statute of Frauds to operate upon. Adams v. Smilie, 50 Vt. 1, 1877 Vt. LEXIS 48 (1877).

In an action on contract for sale of certain standing timber, writing signed by plaintiff but not by defendants, whereby he sold them timber and gave them six months in which to remove it and under which they entered upon land and cut all timber involved in suit and removed some and left the rest, was admissible, as against statute, since defendants by entering and acting under writing adopted it and became bound by it as if they had signed it. Ross v. Hamilton, 95 Vt. 234, 113 A. 781, 1921 Vt. LEXIS 206 (1921).

Cited.

Cited in Dickson v. McMahan, 140 Vt. 23, 433 A.2d 310, 1981 Vt. LEXIS 551 (1981); Bryant v. Strong, 141 Vt. 244, 448 A.2d 142, 1982 Vt. LEXIS 518 (1982); In re Tremblay, 28 B.R. 497, 1983 Bankr. LEXIS 6603 (Bankr. D. Vt. 1983); Frank W. Whitcomb Construction Corp. v. Cedar Construction Co., 142 Vt. 541, 459 A.2d 985, 1983 Vt. LEXIS 430 (1983); Cliche v. Fair, 145 Vt. 258, 487 A.2d 145, 1984 Vt. LEXIS 586 (1984); Prescott v. Smits, 146 Vt. 430, 505 A.2d 1211, 1985 Vt. LEXIS 391 (1985); Gallagher v. McCarthy, 148 Vt. 258, 532 A.2d 557, 1987 Vt. LEXIS 501 (1987); Nutting v. Freda, 153 Vt. 501, 572 A.2d 896, 1990 Vt. LEXIS 20 (1990); Bassler v. Bassler, 156 Vt. 353, 593 A.2d 82, 1991 Vt. LEXIS 95 (1991); Bensen v. Gall, 158 Vt. 106, 605 A.2d 841, 1992 Vt. LEXIS 25 (1992).

Cited.

Cited in Catamount Slate Prods. v. Sheldon, 2003 VT 112, 176 Vt. 158, 845 A.2d 324, 2003 Vt. LEXIS 355 (2003).

Generally.

Agreement between creditor and principal debtor for extension of time of payment does not affect liability of surety unless requirements of this section are met. Johnson v. Learie, 100 Vt. 308, 137 A. 205, 1927 Vt. LEXIS 154 (1927).

Lease.

In action on bond to secure performance by lessees of conditions of lease, under this section surety was not released by reason of lessor having accepted demand notes for overdue rent, where no valuable consideration for notes appeared, unless notes were given in payment of rent. Johnson v. Learie, 100 Vt. 308, 137 A. 205, 1927 Vt. LEXIS 154 (1927).

Promissory note.

Where defendant offered to prove that plaintiff afterwards verbally agreed with defendant’s co-maker on note, for valuable consideration, on an extension of time, contract was within statute and evidence was inadmissible. Benedict v. Cox, 52 Vt. 247, 1880 Vt. LEXIS 122 (1880).

Generally.

General jurisdiction of county courts over civil actions is defined by 4 V.S.A. § 113 and this section. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

Breach of promise to marry.

In action for breach of promise to marry, made in Italy, to be performed there, and which was broken there, omission in declaration to lay action where suit was brought, under a videlicet, did not affect court’s jurisdiction to try case, since in this state that fiction did not designate county from which jury was drawn, but place of trial was determined by statute. Massucco v. Tomasi, 80 Vt. 186, 67 A. 551 (1907), same case 78 Vt. 188, 62 A. 57.

Construction.

Use of word “may” in one section of statute and use of word “shall” in another section indicate an intention to differentiate between sections—“may” being permissive while “shall” is of restrictive import. Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

“Allow” and “permit” are synonymous and convertible and are of same intent as “may.” Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

Ejectment.

Where no party disputes title, an action for ejectment may properly be brought in the district court in the county where either party resides. Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985).

District court ejectment action was not a proceeding to establish or settle title to land, and venue was not governed by this section providing that actions concerning real estate shall be brought in the county in which the land lies; the action could be brought, under section 405 of this title, in the territorial unit in which one of the parties resided, and it made no difference where the property was situated. State v. Fisher, 134 Vt. 339, 360 A.2d 102, 1976 Vt. LEXIS 669 (1976).

Historical.

Provisions of this section relating to venue generally of county court actions were enacted prior to those having to do with such actions in which railroad corporation is a party, see P.L. 1565, Revision 1787, page 27. Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

Motion.

Mere motion to abate writ on basis of nonresidence of parties was not sufficient where nonresidence did not appear on face of record, but could be made out only by proof dehors process, so plea could not be treated as motion. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956).

Railroads.

This section allows an action against domestic railroad to be brought in any county court having jurisdiction under general venue of plaintiffs or defendants as well as in such court in county where its railroad is located. Snyder v. Central Vt. Ry., 112 Vt. 190, 22 A.2d 181, 1941 Vt. LEXIS 150 (1941).

Replevin.

Court had jurisdiction of action of replevin brought in county where one of parties resided, although property replevied was detained in another county. Collamer v. Page, 35 Vt. 387, 1862 Vt. LEXIS 54 (1862).

Residence.

In considering question of intention as to residence within meaning of this section, it is always important to consider whether party has anything to return to, and if he has, he may well be supposed to have intention to return, but if he has not, he may more reasonably be thought to carry his home with him. Cyr v. Cyr, 118 Vt. 445, 111 A.2d 735, 1955 Vt. LEXIS 110 (1955).

Mere intention does not constitute residence; it must have a relation to definite place to which person has a right to return. Cyr v. Cyr, 118 Vt. 445, 111 A.2d 735, 1955 Vt. LEXIS 110 (1955).

Intention alone cannot retain residence, every vestige of which is gone, with no place left to which party has right to return. Cyr v. Cyr, 118 Vt. 445, 111 A.2d 735, 1955 Vt. LEXIS 110 (1955).

Town road insufficiency.

Action to recover damages from town or other corporation for injury happening through insufficiency of road was not local, so as to require action to be brought in county where injury occurred. Hunt v. Pownal, 9 Vt. 411, 1837 Vt. LEXIS 60 (1837).

Trespass on freehold.

Action of trespass in county court is a local action because it is made so by statute. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

If action of trespass was brought in county court in wrong county, error was defect in process and in no way affected general jurisdiction of court over subject matter. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

Trespass on freehold would not lie in this state for trespass committed on lands in Massachusetts. Niles v. Howe, 57 Vt. 388, 1885 Vt. LEXIS 66 (1885).

Trustee process.

In trustee process, residence of plaintiff or principal debtor determines place where suit is to be brought, and not residence of trustee. Trombly & Sax v. Clark, 13 Vt. 118, 1841 Vt. LEXIS 21 (1841).

Venue.

Unless an action requires the court to directly establish, quiet, attach, transfer, or bestow title to real property, provision of this section pertaining to actions concerning real estate does not apply. Bergeron v. Boyle, 2003 VT 89, 176 Vt. 78, 838 A.2d 918, 2003 Vt. LEXIS 280 (2003).

Since plaintiffs’ request for specific performance was personal in nature — the relief sought would require defendant to fulfill his contractual obligations—their action was transitory despite its effect on real property; consequently, A county other than that where the property is located was a proper venue for plaintiffs’ action. Bergeron v. Boyle, 2003 VT 89, 176 Vt. 78, 838 A.2d 918, 2003 Vt. LEXIS 280 (2003).

Wrongful death.

Action for wrongful death under New Hampshire statute against defendants found in Vermont, by Vermont ancillary administrator, was properly brought in county where latter resided. Brown v. Perry, 104 Vt. 66, 156 A. 910, 1931 Vt. LEXIS 146 (1931).

—Generally.

Where court has jurisdiction of subject matter, defense based upon fact that suit is brought in wrong county must be seasonably asserted and failure so to plead waives objection. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956); Collamer v. Page, 35 Vt. 387, 1862 Vt. LEXIS 54 (1862).

Statutes prescribing counties in which a defendant may be sued generally relate only to jurisdiction over person, and confer on defendant privilege with regard to the place where he may be sued which may be waived by him, and by appearing generally, defendant waives such privilege and becomes subject to jurisdiction of court. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956).

General appearance by some act which goes to merits and does not raise question of venue when it could have been raised waives objection that venue was wrong, whether it be because defendant is privileged to be sued only in county or district of his domicile or because action is brought in county or district in which neither plaintiff or defendant resides. J.O. Bilodeau & Co. v. Reed, 119 Vt. 342, 126 A.2d 118, 1956 Vt. LEXIS 115 (1956).

If an action of trespass was brought in county court of wrong county, error was defect of process, and being matter of abatement was waived by failure to seasonably plead it. Page v. Newbury, 113 Vt. 336, 34 A.2d 218, 1943 Vt. LEXIS 182 (1943).

Construction.

Provision authorizing change of venue because impartial trial cannot be had should be construed in light of common law. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569, 58 Yale L.J. 1188.

Discretion.

Presiding judge has reasonable discretion in determining whether there is reason to believe that impartial trial cannot be had in county where case is pending. Willard v. Norcross, 83 Vt. 268, 75 A. 269 (1910), same case 79 Vt. 546, 65 A. 755, 81 Vt. 293, 69 A. 942, 82 Vt. 185, 72 A. 820, 86 Vt. 426, 85 A. 904.

Evidence.

Where statute authorized county judges to direct from what towns jurors should be drawn, prejudices which would warrant change of venue must exist generally throughout county, existence in particular locality not being sufficient. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569, 58 Yale L.J. 1188.

Testimony of long time residents of a county who had large acquaintance in vicinity where they lived that they never heard anything said indicating ill feeling against defendant was relevant to show that no such feeling existed. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569, 58 Yale L.J. 1188.

This section requires that there shall be proof sufficient to satisfy conscience of judge, and to put in his mind a reasonable belief of ultimate fact that an impartial trial cannot be had in county where the case is pending, and evidence must be of relevant facts, so that judge may draw his own conclusions therefrom, opinion of witnesses being insufficient; and judge’s ruling that it must “clearly appear” that justice could not be done, in order to justify change of venue, did not incorrectly state measure of proof. Willard v. Norcross, 83 Vt. 268, 75 A. 269 (1910), same case 79 Vt. 546, 65 A. 755, 81 Vt. 293, 69 A. 942, 82 Vt. 185, 72 A. 820, 86 Vt. 426, 85 A. 904.

Exceptions.

All statutes relating to review on bill of exceptions have reference to exceptions taken to action of trial court, and not to that of presiding judge thereof; and 4 V.S.A. § 117 , did not authorize presiding judge of county court to allow exceptions to his refusal to remove a case to another county for trial on account of local prejudice. Willard v. Norcross, 83 Vt. 268, 75 A. 269 (1910), same case 79 Vt. 546, 65 A. 755, 81 Vt. 293, 69 A. 942, 82 Vt. 185, 72 A. 820, 86 Vt. 426, 85 A. 904.

Petition.

Fact that defendant’s petition for change of venue was verified by oath of its general manager, and that no answer thereto was filed, nor counter affidavits submitted, did not require presiding judge to treat facts stated in petition as conclusive. Central Vt. Ry. v. Carpenter, 86 Vt. 67, 83 A. 466 (1911), same case 84 Vt. 538, 80 A. 657, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569.

Allegations on information and belief in unanswered petition were not evidence, and could serve only to raise an issue. Central Vt. Ry. v. Carpenter, 86 Vt. 67, 83 A. 466 (1911), same case 84 Vt. 538, 80 A. 657, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569.

Review.

Denial of a petition for change of venue was “final judgment” reviewable on certiorari. Carpenter v. Central Vt. Ry., 84 Vt. 538, 80 A. 657 (1911), same case 86 Vt. 67, 83 A. 466, 90 Vt. 35, 96 A. 373, 93 Vt. 357, 107 A. 569.

Ejectment.

Where no party disputes title, an action for ejectment may properly be brought in the district court in the county where either party resides. Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985).

District court ejectment action was not a proceeding to establish or settle title to land, and venue was not governed by section 402 of this title providing that actions concerning real estate shall be brought in the county in which the land lies; the action could be brought, under this section, in the territorial unit in which one of the parties resided, and it made no difference where the property was situated. State v. Fisher, 134 Vt. 339, 360 A.2d 102, 1976 Vt. LEXIS 669 (1976).

Objection and waiver.

Objection in an action commenced before justice of the peace that writ was not made returnable in town in which one of parties resided was matter of abatement, which was waived if not pleaded at first appearance before the justice. University of Vermont v. Joslyn, 21 Vt. 52, 1848 Vt. LEXIS 97 (1848).

Rent.

Common law principle that action of covenant for rent reserved in lease brought by lessor against assignee of lessee was local has been superseded by statute. University of Vermont v. Joslyn, 21 Vt. 52, 1848 Vt. LEXIS 97 (1848).

Sale of goods.

Subsection (b)(3) was applicable only to vendor who established business in town where sale was made as dealer in goods, wares and merchandise, and to peddlers going from town to town. Farr v. Rand, 88 Vt. 453, 92 A. 964, 1915 Vt. LEXIS 255 (1915); Richardson v. Stevens, 41 Vt. 120, 1868 Vt. LEXIS 85 (1868).

It did not apply to single act of selling, by one who was only transiently in town in which sale was made, and had no established business there. Stone v. Hazen, 25 Vt. 178, 1853 Vt. LEXIS 20 (1853); Wainwright v. Berry, 3 Vt. 423, 1831 Vt. LEXIS 31 (1831).

Trespass on freehold.

In action of trespass on the freehold before justice of peace, writ must be made returnable in town where one of parties resides, if both parties are citizens of state, and writ will abate if made returnable in town where land lies if neither of parties resides in that town. June v. Conant, 17 Vt. 656, 1845 Vt. LEXIS 98 (1845).

Generally.

Statute of limitations did not run against state, unless named in direct terms. State Treasurer v. Weeks, 4 Vt. 215, 1832 Vt. LEXIS 25 (1832).

Law Reviews —

Applicability of a state statute of limitations to the claim of a foreign sovereign, see 47 Yale L.J. 132, 134 (1937).

Generally.

Vermont Code limits the applicability of the statutory fifteen-year prescriptive period with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period. The effect of the exemption is to control what periods the adverse possessor can count in order to show fifteen years of open, notorious, hostile and continuous use or possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Element of a claim of boundary by acquiescence is possession for the full statutory period, as defined by the limitations period for the recovery of land, and an exemption limits the applicability of the limitations period to lands dedicated to public, pious, or charitable use. The plain meaning of the words in the statute makes it clear that the exemption applies to all actions for which proving the statutory period defined in the limitations period is an element. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Thus, plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Applicability.

Statute exempting lands belonging to the State from the statute of limitations is limited to claims of adverse possession (or other claims of property interests arising by prescription). Accordingly, it did not exempt the State’s claims against defendants for groundwater contamination from the statute of limitations. State v. Atlantic Richfield Co., 2016 VT 61, 202 Vt. 212, 148 A.3d 559, 2016 Vt. LEXIS 59 (2016).

Charitable use.

Because the primary use of property of a fraternal organization property was for private meetings, such use could not be found to benefit an indefinite segment of the public at large; therefore, the property could not qualify for an exemption under the charitable use exception to the adverse possession statute. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

Computation of statutory period.

Exemption for public, pious or charitable uses limits the applicability of the statute of limitations for the recovery of land with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period; its effect is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile, and continuous use or possession. To the extent it can be considered a defense, it is not an affirmative defense, and the rule regarding pleadings imposes no obligation upon defendant to plead the application of the statute in an answer. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Glebe land.

Title to glebe land cannot be acquired by adverse possession. Brown v. Derway, 109 Vt. 37, 192 A. 16, 1937 Vt. LEXIS 112 (1937).

Particular cases.

Focus of the charitable exemption from the statute of limitations is not on lands held by a public, pious or charitable user but rather on lands given, granted, sequestered or appropriated to a public, pious or charitable use. Defendant’s predecessor’s only use of the property during its years of ownership was as a charitable summer camp, and thus the land was appropriated to a charitable use during the entirety of its ownership. Mahoney v. Tara, LLC, 2014 VT 90, 197 Vt. 412, 107 A.3d 887, 2014 Vt. LEXIS 100 (2014).

Because the trial court’s reading of the public, pious or charitable use exception to the statutory 15-year prescriptive period was in line with the court’s precedent, with precedents from other jurisdictions, and with the policy concerns behind the provision, the trial court properly held that plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

As there was no dispute that defendant’s property, when owned by a church, was dedicated to pious use and operated on a nonprofit basis, the pious-use exemption negated plaintiffs’ claim for adverse possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Policy behind the exception for public, pious, or charitable uses—that land should not be lost to the State and public through the laches or ignorance of the public or of officials representing it—applies with equal force to claims of boundary by acquiescence. Accordingly, plaintiffs’ boundary-by-acquiescence claim was barred when the property had been used by a church for pious uses. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Reversal and remand were required when the trial court relied on the name of an organization to infer that its use of the property in question necessarily had a pious or charitable purpose. The name alone did not reveal whether the use of the property was for a privileged purpose. Mahoney v. Tara, LLC, 2011 VT 3, 189 Vt. 557, 15 A.3d 122, 2011 Vt. LEXIS 3 (2011) (mem.).

Pious use.

Plain meaning of the words in the statute makes it clear that the exemption for public, pious, or charitable uses applies to all actions for which proving the statutory period for recovery of lands is an element. Thus, plaintiffs’ boundary-by-acquiescence claim was barred by the exemption for public, pious, or charitable uses. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Because between 1981 and 2005, the property in question was owned by a non-profit church and dedicated to religious and community uses, the exemption for pious uses applied and negated plaintiffs’ adverse possession claims. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

It is self-evident that the qualifying criteria set forth in American Museum and its progeny for public or charitable uses have no application to the pious-use exemption from adverse possession. The question must turn generally, therefore, on whether a property meets the standard for pious use, subject to the more limiting requirements of the property tax exemption. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

To the extent the pious-use exception to the statutory fifteen-year prescriptive period was a defense, it was not an affirmative defense, and there was no obligation to defendant to plead the application of the statute in its answer to plaintiffs’ adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Qualifying criteria set forth in American Museum and its progeny for public or charitable uses have no application to the pious-use exemption from adverse possession claims or prescriptive easements. The question must turn generally, therefore, on whether a property meets the standard for “pious” use, subject to the more limiting requirements of the tax exemption for such uses. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

First and third requirements of the American Museum test, in slightly modified form, remain applicable to the pious-use exemption to the prescriptive period for adverse possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Statute which exempted church property from adverse possession claims or prescriptive easements did not violate Establishment Clause of First Amendment, since property dedicated to “pious” use was included among a broad class of property in the statute, there was no direct governmental support for religious activities, effect of statute was not to either advance or inhibit religion, and statute did not foster excessive government entanglement with religion. Chittenden v. Waterbury Center Community Church, 168 Vt. 478, 726 A.2d 20, 1998 Vt. LEXIS 400 (1998).

Under this section, title cannot be acquired by adverse possession to land granted and held for pious use. Davis v. Union Meeting House Soc’y, 93 Vt. 520, 108 A. 704 (1920), same case 92 Vt. 402, 105 A. 29.

Public use.

Where a donor, in 1807, conveyed a parcel of land to a town subject to the town building a meeting house thereon and continuing to use it for that purpose, and where the town, in 1927, breached the deed restriction by building a school on the property and erecting a new meeting house on separate property, the fee automatically reverted to the heirs of the donor and the property was not “given” or “appropriated” for a public purpose by its legal owners. Accordingly, from that point on, the town was not barred by 12 V.S.A. § 462 . In re .88 Acres, 165 Vt. 17, 676 A.2d 778, 1996 Vt. LEXIS 29 (1996).

In determining whether municipal land was given to a public use thus exempting it from a claim of adverse possession, the reason the property was acquired by the town, the uses made since its acquisition, and evidence of manifest intent to use the property in the future are to be considered. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Trial court properly found plaintiff had carried his burden to prove acquisition of title to municipal land by adverse possession where plaintiff openly, notoriously, hostilely and continuously possessed the property in excess of the statutory period and property had not been given to a public use, such as would exempt it from plaintiff’s claim. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Under statutory exemption of municipal lands given to a public use from claims of adverse possession, land which is owned by a municipality is presumed to be given to such use; however, this presumption can be rebutted by demonstrating that the town has abandoned any plans for the land. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Where town acquired parcel in settlement of a debt, the parcel was not used by the public during the next 51 years, following which the town conveyed the parcel to a private individual, trial court properly concluded the parcel was not given to a public use and therefore not exempt from plaintiff’s claim of adverse possession. Jarvis v. Gillespie, 155 Vt. 633, 587 A.2d 981, 1991 Vt. LEXIS 16 (1991).

Grant of land, being for a public use, was protected from acquisition by adverse possession. Addison County v. Blackmer, 101 Vt. 384, 143 A. 700, 1928 Vt. LEXIS 167 (1928); University of Vermont v. Reynolds' Ex'r, 3 Vt. 542, 1831 Vt. LEXIS 49 (1831).

University land.

In action of ejectment, where university corporation, predecessor in title of plaintiff, also university corporation, acquired title to land involved in 1844 and had good chain of title back to original grant, but neither corporation had ever occupied premises, where defendants had occupied and farmed the land since 1923, had good record title thereto going back to mortgage executed in 1871, and they and their predecessors in title had paid taxes assessed thereon, and where trustees of plaintiff were given power by act of 1865 to convey land owned, grant by plaintiff to defendants or their predecessors in title would be presumed, notwithstanding provision of this section excepting lands granted to a public, pious or charitable use from operation of § 501 of this title. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

Waters of public and boatable lake.

Right to lower level of waters of public and boatable lake to such extent as to injure interests of people of the State cannot be gained by prescription in accordance with provision that nothing contained in statute of limitations shall extend to State lands. State v. Malmquist, 114 Vt. 96, 40 A.2d 534, 1944 Vt. LEXIS 91 (1944); Hazen v. Perkins, 92 Vt. 414, 105 A. 249, 1918 Vt. LEXIS 194 (1918).

Cited.

Cited in In re Town Highway No. 20, 2003 VT 76, 175 Vt. 626, 834 A.2d 17, 2003 Vt. LEXIS 155 (2003); Benson v. Hodgdon, 2010 VT 11, 187 Vt. 607, 992 A.2d 1053, 2010 Vt. LEXIS 15 (2010) (mem.).

Dram Shop Act.

Because the Dram Shop Act contains its own limitations provision and is not codified in the chapter governing limitation of actions, an action under the Dram Shop Act is “otherwise specially limited” and removed from the operation of the minority tolling provision by this section. Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, 180 Vt. 25, 904 A.2d 1133, 2006 Vt. LEXIS 135 (2006).

Negotiable instruments.

Statute governing actions specially limited by other provisions signals that applicable statutes of limitations outside of Title 12, Chapter 23 trump potentially applicable limitations periods within that chapter. Accordingly, the six-year statute of limitations in the Uniform Commercial Code for negotiable demand notes prevailed over the 14-year limitations period for witnessed promissory notes in Chapter 23 of Title 12. Clark v. Distefano, 2018 VT 82, 208 Vt. 139, 195 A.3d 379, 2018 Vt. LEXIS 111 (2018).

Workman’s compensation.

Proceeding for workmen’s compensation does not come within this section, since six months’ limitation established by 21 V.S.A. § 656 , did not apply to commencement of action but only to preliminary requirement of making claim on employer. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920, 1937 Vt. LEXIS 121 (1937).

Applicability.

Because an action involving a trust was not an action under a contract, the statute regarding limitations or waiving limitation of actions in contracts was not applicable. In re Estate of Alden v. Alden, 2011 VT 64, 190 Vt. 401, 35 A.3d 950, 2011 Vt. LEXIS 71 (2011).

Time limitations.

Condominium owners’ complaint was not time-barred based on a limitation in the contract because, pursuant to 12 V.S.A. § 465 , the provision in the contract that required a party to present a claim within one year of the date the claiming party knew or should have known of the facts giving rise to the claim was null and void. Bergman v. Spruce Peak Realty, LLC, 847 F. Supp. 2d 653, 2012 U.S. Dist. LEXIS 37229 (D. Vt. 2012).

I. GENERALLY.

Construction.

Statute was not applicable to petition to redeem mortgage. Wells v. Morse, 11 Vt. 9, 1838 Vt. LEXIS 126 (1838).

Death.

Though period of limitation for bringing an action under this section ceases to operate with death of a mortgagor by virtue of § 557 of this title, period limiting the right or title of entry under mortgage to 15 years from time such right of entry accrued continues to operate under § 502 of this title. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

Doctrine of presumptive grants.

Doctrine of presumptive grants exists independently of statute of limitations. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

It applies to cases within statute and also to those without statute because subject matter is not included therein or because it may be said that they are not within on account of some express exception or exemption. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

In cases within statute mere length of possession, unaccompanied by other circumstances, is not sufficient to raise presumption of grant, for where possession has existed for length of time prescribed by statute it becomes barred by operation of the statute, while if it has existed for less time, it must be aided by other circumstances or presumption cannot arise. University of Vermont v. Carter, 110 Vt. 206, 3 A.2d 533, 1939 Vt. LEXIS 130 (1939).

—Generally.

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Because the trial court’s reading of the public, pious or charitable use exception to the statutory 15-year prescriptive period was in line with the court’s precedent, with precedents from other jurisdictions, and with the policy concerns behind the provision, the trial court properly held that plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Exemption for public, pious or charitable uses limits the applicability of the statute of limitations for the recovery of land with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period; its effect is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile, and continuous use or possession. To the extent it can be considered a defense, it is not an affirmative defense, and the rule regarding pleadings imposes no obligation upon defendant to plead the application of the statute in an answer. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Possession of property by remaindermen subsequent to the date when the remainder interests became possessory upon the death of the last surviving life tenant was not sufficient to establish a claim of adverse possession where the possession was not of sufficient duration to satisfy the requisite statutory period of 15 years. Ransom v. Bebernitz, 172 Vt. 423, 782 A.2d 1155, 2001 Vt. LEXIS 266 (2001).

Statute does not begin to run till plaintiff’s cause of action accrues. Paine v. Webster, 1 Vt. 101, 1828 Vt. LEXIS 7 (1828).

Statute will not commence to run against remainder man until his right of possession commences. Bailey v. Woodbury, 50 Vt. 166, 1877 Vt. LEXIS 81 (1877).

Suit commenced by children claiming fee tail estate under will was not barred by statute when brought within 15 years after death of holder of life estate. Giddings v. Smith, 15 Vt. 344, 1843 Vt. LEXIS 51 (1843).

Computation of time, see also annotations under subch. 3 of this chapter.

Pleading.

To the extent the pious-use exception to the statutory 15-year prescriptive period was a defense, it was not an affirmative defense, and there was no obligation to defendant to plead the application of the statute in its answer to plaintiffs’ adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Statute may be availed of by demurrer in suit in equity when objection appears on face of bill. Scully v. Dermody, 110 Vt. 422, 8 A.2d 675, 1939 Vt. LEXIS 161 (1939).

Defendants who litigated question of statute by plea were not at liberty to litigate it again by answer; and plaintiff had right to traverse answer and take testimony in support of allegations of bill, and so to defeat plea on proof as well as by its own concessions, and did not waive effect of adjudication on plea by so traversing. Foster v. Foster, 51 Vt. 216, 1878 Vt. LEXIS 147 (1878).

—Generally.

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Because the trial court’s reading of the public, pious or charitable use exception to the statutory 15-year prescriptive period was in line with the court’s precedent, with precedents from other jurisdictions, and with the policy concerns behind the provision, the trial court properly held that plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Exemption for public, pious or charitable uses limits the applicability of the statute of limitations for the recovery of land with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period; its effect is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile, and continuous use or possession. To the extent it can be considered a defense, it is not an affirmative defense, and the rule regarding pleadings imposes no obligation upon defendant to plead the application of the statute in an answer. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Possession of property by remaindermen subsequent to the date when the remainder interests became possessory upon the death of the last surviving life tenant was not sufficient to establish a claim of adverse possession where the possession was not of sufficient duration to satisfy the requisite statutory period of 15 years. Ransom v. Bebernitz, 172 Vt. 423, 782 A.2d 1155, 2001 Vt. LEXIS 266 (2001).

Statute does not begin to run till plaintiff’s cause of action accrues. Paine v. Webster, 1 Vt. 101, 1828 Vt. LEXIS 7 (1828).

Statute will not commence to run against remainder man until his right of possession commences. Bailey v. Woodbury, 50 Vt. 166, 1877 Vt. LEXIS 81 (1877).

Suit commenced by children claiming fee tail estate under will was not barred by statute when brought within 15 years after death of holder of life estate. Giddings v. Smith, 15 Vt. 344, 1843 Vt. LEXIS 51 (1843).

Computation of time, see also annotations under subch. 3 of this chapter.

II. ADVERSE POSSESSION.

Generally.

For purposes of an adverse possession claim, the period during which the land falls under the public, pious or charitable use exception cannot be counted toward the statutory 15-year prescriptive period, even when the land is no longer in public, pious or charitable use. Thus, plaintiffs could not rely on the years during which a church owned the property in question and dedicated it to a public, pious or charitable use to make their adverse possession claims. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Adverse possession claim is really one for recognition of title and enforcement of the rights that accompany title. Unless raised by another adverse possessor, the statute of limitations does not create a defense to an adverse possession claim. Roy v. Woodstock Cmty. Trust, 2013 VT 100, 2013 VT 100A, 195 Vt. 427, 94 A.3d 530, 2013 Vt. LEXIS 125 (2014).

Adverse possession claim is really one for recognition of title and enforcement of the rights that accompany title. Unless raised by another adverse possessor, the statute of limitations does not create a defense to an adverse possession claim. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Element of a claim of boundary by acquiescence is possession for the full statutory period, as defined by the limitations period for the recovery of land, and an exemption limits the applicability of the limitations period to lands dedicated to public, pious, or charitable use. The plain meaning of the words in the statute makes it clear that the exemption applies to all actions for which proving the statutory period defined in the limitations period is an element. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

Vermont Code limits the applicability of the statutory 15-year prescriptive period with respect to lands that are or have been dedicated to public, pious, or charitable use during the prescriptive period. The effect of the exemption is to control what periods the adverse possessor can count in order to show 15 years of open, notorious, hostile and continuous use or possession. Roy v. Woodstock Cmty. Trust, Inc., 2013 VT 100A, 94 Vt. 530, 195 A.3d 427, 2013 Vt. LEXIS 106 (Nov. 1, 2013).

To achieve title through adverse possession, a claimant must demonstrate that possession of land was open, notorious, hostile and continuous throughout statutory period of 15 years. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

In view of evidence of open, notorious and continuous use of disputed portion of land from 1929 to 1976 by the parties claiming title by adverse possession and absent any evidence that, prior to 1944, this use was by permission, record was sufficient to support claim of title by adverse possession as early as 1944. Zuanich v. Quero, 135 Vt. 322, 376 A.2d 763, 1977 Vt. LEXIS 617 (1977).

Adverse possession may be asserted either under claim of title or under a claim of right which arises from the open, notorious and hostile possession of the land at issue. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

The test for adverse possession is that the possession must be open, notorious, hostile and continuous for the full statutory period of 15 years. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

Possession for 15 years by defendant, adverse to plaintiff, barred plaintiff’s action, whether defendant claimed in his own right, or under town. Boothe v. Coventry, 4 Vt. 295, 1832 Vt. LEXIS 37 (1832).

Burden of proof.

Where easement by adverse user is claimed, burden is on plaintiff affirmatively to prove all elements of adverse user. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Prima facie defendant’s enjoyment of his land was an exercise of his right so to enjoy it; and it was for plaintiffs to show that what he did with reference to his property was consistent with their claim and not for him to show that his actions were inconsistent with it. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Burden of proof generally.

Burden of proving adverse possession was on parties claiming it. Higgins v. Ringwig, 128 Vt. 534, 267 A.2d 654, 1970 Vt. LEXIS 268 (1970).

In establishing adverse possession, the burden is on the proponent to prove to the satisfaction of the trier of fact that there has been open, notorious, hostile, and continuous possession through the statutory period of time. Bemis v. Lamb, 135 Vt. 618, 383 A.2d 614, 1978 Vt. LEXIS 748 (1978).

Character of possession generally.

Where a donor, in 1807, conveyed a parcel of land to a town subject to the town building a meeting house thereon and continuing to use it for that purpose, and where the town, in 1927, breached the deed restriction by building a school on the property and erecting a new meeting house on separate property, the fee automatically reverted to the heirs of the donor and the property was not “given” or “appropriated” for a public purpose by its legal owners. Accordingly, from that point on, the town was not barred by 12 V.S.A. § 462 . In re .88 Acres, 165 Vt. 17, 676 A.2d 778, 1996 Vt. LEXIS 29 (1996).

Parties claiming title by adverse possession would not be precluded from establishing title under this section by fact that their use of disputed property was premised upon mistaken belief that property was actually theirs. Zuanich v. Quero, 135 Vt. 322, 376 A.2d 763, 1977 Vt. LEXIS 617 (1977).

The test for adverse possession is that the possession must be open, notorious, hostile and continuous for the full 15-year period set forth in this section. Thibault v. Vartuli, 143 Vt. 178, 465 A.2d 248, 1983 Vt. LEXIS 494 (1983).

Adverse possession is accomplished through open, notorious, hostile and continuous possession of another’s property for a period of 15 years. Moran v. Byrne, 149 Vt. 353, 543 A.2d 262, 1988 Vt. LEXIS 36 (1988).

In order to establish a successful claim of adverse possession, the possession must be open, notorious, hostile and continuous throughout the statutory period of 15 years. Brown v. Whitcomb, 150 Vt. 106, 550 A.2d 1, 1988 Vt. LEXIS 132 (1988).

When possession is of such character as to indicate to owner that it is exercised as matter of right, no notice of possessor’s claim is required to make it adverse. Jangraw v. Mee, 75 Vt. 211, 54 A. 189, 1903 Vt. LEXIS 117 (1903).

Whether or not possession is of such character is question for jury. Jangraw v. Mee, 75 Vt. 211, 54 A. 189, 1903 Vt. LEXIS 117 (1903).

Possession must be open, notorious, hostile and continuous through the statutory period of 15 years to form the basis for title by adverse possession. Higgins v. Ringwig, 128 Vt. 534, 267 A.2d 654, 1970 Vt. LEXIS 268 (1970).

That possession of real estate was under claim of right could be inferred from fact that it was notorious, visible, exclusive and continuous for more than 15 years. Spencer v. Lyman Falls Power Co., 109 Vt. 294, 196 A. 276, 1938 Vt. LEXIS 135 (1938).

In order to gain title to land by adverse possession, the possession that will work an ouster of the owner must be open, notorious, hostile and continuous through the statutory period of 15 years. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971); Cavendish v. Barlow, 120 Vt. 161, 136 A.2d 352, 1957 Vt. LEXIS 79 (1957); Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944); Soule v. Barlow, 49 Vt. 329, 1877 Vt. LEXIS 15 (1877).

One who enters upon another’s land and so fences it as to clearly indicate to true owner and all others who may be interested that he asserts dominion to that limit may acquire title thereto by adverse possession, though he was at the start without title or color of title. Lyon v. Parker Young Co., 96 Vt. 361, 119 A. 881, 1923 Vt. LEXIS 177 (1923).

Where each of two adjoining land owners occupied to a dividing fence for more than 15 years, each claiming to own to the fence and beyond, possession of each was adverse, and when such occupation of each was open, continuous and exclusive, title by adverse possession was established. Brown v. Clark, 73 Vt. 233, 50 A. 1066, 1901 Vt. LEXIS 160 (1901).

Where purchaser of land by verbal contract paid stipulated price and went into possession as owner and continued possession as owner for 15 years, his title became perfect; but where by contract of purchase he was to have premises if he paid price, and never complied with condition, his possession under such contract was not of such an adverse character as to ripen into a title, as against vendor, in 15 years. Adams v. Fullam, 43 Vt. 592 (1871), same case 47 Vt. 558, 1 A.L.R. 1337.

—Generally.

Plaintiffs had shown adverse possession of a knoll and a parking area for the requisite 15-year period when there were boulders around the parking area and a walkway between the house and the parking area at the time that plaintiffs bought the home, no one ever expressed that the parking area or the knoll were not part of the plaintiffs’ property, the realtor parked in the parking area when showing the house, the knoll was covered in construction debris, and a neighbor and a contractor provided credible testimony that the prior owners used both areas as their own since at least 1987 for parking and storage purposes. Parker v. Potter, 2014 VT 109, 197 Vt. 577, 109 A.3d 406, 2014 Vt. LEXIS 111 (2014).

Either an answer by the defendant disputing the plaintiff’s title or a counterclaim challenging the title of the plaintiff and making a claim of ownership of the property in the response to an adverse possessor’s suit to quiet title will toll the statute of limitations, effective on the date the answer or counterclaim was filed. Mahoney v. Tara, LLC, 2014 VT 90, 197 Vt. 412, 107 A.3d 887, 2014 Vt. LEXIS 100 (2014).

After his contribution to a slate quarrying business from 1964 to 1972, plaintiff vacated the property and ceased living in the area for many years, with no objective acts indicating that he intended to continue his possession or return to enjoy the premises. In other words, his “flag on the land” was not kept “flying,” and plaintiff could not show adverse possession by returning for the period from 1985 to 1992. In re Estates of Allen, 2011 VT 95, 190 Vt. 301, 30 A.3d 662, 2011 Vt. LEXIS 96 (2011).

The trial court erred in its decision granting claimants a strip of land upon which their predecessor in interest had built a stone wall and tended a flower garden; the property owners’ could easily have assumed that the maintenance of the garden area was simply part of the predecessor’s work as their groundskeeper and, under these circumstances, despite the existence of the stone wall, the evidence was not sufficient to establish the element of hostility required for an adverse possession claim to succeed. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting a strip of land to claimants where there was no evidence to show that claimants took any act regarding the strip that could be seen as disavowing the property owners’ title. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting claimants the title to a 15 foot parking area in front of their barn because there was no evidence challenging the property owners’ regular use of the area and, because the property owners had continuously used the land in question, the statutory period for adverse possession for the parcel had not begun. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

Separate petitioners each established adverse possession on a portion of a disputed lot where it was shown that they acted no differently than any record title owners, and individually established open, notorious, hostile, and continuous possession of each side of the lot for the period of 15 years. Lysak v. Grull, 174 Vt. 523, 812 A.2d 840, 2002 Vt. LEXIS 234 (2002) (mem.).

Claimant’s use of property was sufficiently continuous to establish adverse possession as to floor of quarry; although land was not always worked to its maximum capacity, there was continuous notice of occupancy, and periods of time when operations slowed or stopped were consistent with exigencies of a family-run business and it was clear that claimant’s family intended to continue working there. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Mere verbal protestations without action to reassert control or dominion over the disputed land does not interrupt the adverse possessor’s interest in the property, but only confirms that the occupation is hostile. Brown v. Whitcomb, 150 Vt. 106, 550 A.2d 1, 1988 Vt. LEXIS 132 (1988).

Trial court rendered sufficient findings for each element of an adverse possession cause of action, despite failing to specifically determine when the statutory period began to run and mislabeling some conclusions of law as findings of fact, where the court found a purchase of the parcel in excess of the statutory period which served as a repudiation of permissible use and findings detailed plaintiff’s continuous, open, notorious and hostile use and occupancy throughout the statutory period. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

Trial court did not err in finding that defendants could claim title to a disputed parcel of land by adverse possession where evidence presented by defendants, that their family had a vegetable garden on the parcel every summer from 1925 until the 1960’s and concerning buildings located on the land from 1925 until the early 1940’s, clearly established that defendants’ possession of the land was open, notorious, hostile and continuous for the full period set forth in this section. Thibault v. Vartuli, 143 Vt. 178, 465 A.2d 248, 1983 Vt. LEXIS 494 (1983).

To constitute continuous possession of lands, in order to obtain title by adverse possession, the law does not require the occupant to be present on the site at all times, rather, there may be lapses of time between acts of possession, that is the occupancy need only be that consistent with the nature and character of the premises; and in the case of lake-side camps, such occupation is, in the literal sense, only during certain periods of the year. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971).

Requirement of continuous possession for gaining title by adverse possession may be satisfied by repeated acts of occupancy and whether time between such acts of occupancy interrupts running of the period depends upon circumstances and intention of occupier. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944); Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

Party who has once commenced a possession of land by actual entry, and acts of occupancy upon it, may continue to possess it during intervals when not upon it; hence he may claim it during intervals as well as when actually upon the land doing acts of possession. Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

There is presumption that use of land by one who has legal title of record thereto is the exercise of his right to enjoy it and such use, if in exercise of right of ownership, interrupts continuity of adverse possession by another. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944).

By an agreement to arbitrate matters in dispute in contest for possession of land, whereby defendant in possession should continue in possession pending the arbitration, running of statute of limitations was interrupted while possession so continued. Perkins v. Flood, 36 Vt. 273, 1863 Vt. LEXIS 72 (1863).

Duration of possession by husband of land claimed by him to belong to his wife, and to which he made no claim in any other right, may be added to duration of his widow’s possession, immediately following his death, to make a possession of 15 years against adverse claimant, and thus to sustain title of widow or her grantee. Holton v. Whitney, 30 Vt. 405 (1858), same case 28 Vt. 448, 69 A.L.R. 1519.

Extent of possession.

In the absence of color of title, adverse possession of a lot with no definite boundary marks can only extend as far as claimant has actually occupied and possessed the land in dispute. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Partial occupation.

Although a claim of adverse possession that proceeds under bare claim of right extends only to that property which claimant has actually occupied, a claimant may also, under doctrine of constructive possession, achieve possession of an entire plot of land through actual occupation of a part. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Because trial court found that property in question was clearly bounded, its conclusion that claimant had established adverse possession of quarry floor necessarily led to conclusion that she established adverse possession of entire quarry, and therefore trial court’s denial of adverse possession with respect to quarry walls was reversed. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Where a person, without title, or color of title, enters upon vacant lot, and actually occupies portion of it, and the lot has a definite boundary, marked upon land, such person, by claiming to be owner to boundary lines of lot, has constructive possession of whole, and will acquire a title to whole by such partial occupation for 15 years, and such entry and claim give him a good prior possession of the whole, and a good title thereto against all the world, except true owner. Webb v. Richardson, 42 Vt. 465 (1869); Hodges v. Eddy, 38 Vt. 327 (1865), same case 41 Vt. 485, 52 Vt. 434; Jakeway v. Barrett, 38 Vt. 316 (1865); Pearsal v. Thorp, 1 D. Chip. 92 (1797), same case 2 Aik. 88, 161.

Permission.

Once a grant is established by adverse use, the subsequent granting of permission will not serve to divest or defeat the claim. Moran v. Byrne, 149 Vt. 353, 543 A.2d 262, 1988 Vt. LEXIS 36 (1988).

Once a grant is established by adverse use, the subsequent granting of permission will not serve to divest or defeat the claim. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Presumptions.

Where plaintiff’s predecessors in title were in open, notorious, hostile and continuous possession of disputed land from 1926 to 1947, such possession gave rise to the presumption of a claim of right rather than permission. Moran v. Byrne, 149 Vt. 353, 543 A.2d 262, 1988 Vt. LEXIS 36 (1988).

Right of way.

To acquire right of way by adverse use, plaintiff must have used same, within its definite limits, uninterruptedly, openly, notoriously and adversely to defendant’s rights and use, for 15 years. Plimpton v. Converse, 44 Vt. 158 (1871), same case 42 Vt. 712, 111 A.L.R. 221, 170 A.L.R. 826, 46 A.L.R.2d 1158.

Fifteen years use necessary to maintain prescriptive right of way, would not commence running until way began to be used under claim of right; but fact that such claim was made may be proved by words, together with use; or the mere use of the way, if expressly shown to have come to the knowledge of owner of soil, will prima facie establish the fact that use was under claim of right, unless owner of soil did not so understand it, and was not bound to so regard it from the nature and extent of the use. Dodge v. Stacy, 39 Vt. 558 (1867), same case 77 Vt. 230, 59 A. 839, 5 A.L.R. 1558, 50 A.L.R. 1269; Dee v. King, 73 Vt. 375, 50 A. 1109 (1901); Tracy v. Atherton, 36 Vt. 503 (1864), same case 35 Vt. 52, 43 A.L.R. 943, 171 A.L.R. 1281.

Right of way could be acquired by adverse possession as against husband, but not as against wife, over land of which husband had life use, with remainder to the wife or her heirs. Coleman v. Aldrich, 61 Vt. 340, 17 A. 848, 1889 Vt. LEXIS 41 (1889).

Defendant did not gain a right to plaintiff’s part of the pent road by her acts of occupation, for they were not adverse but only the ordinary use of the land for highway purposes in common with the public. Carpenter v. Cook, 71 Vt. 110, 41 A. 1038 (1898), same case 67 Vt. 102, 30 A. 998.

Tenant.

Tenant may repudiate his tenancy, and set up claim of title in his own right, and if this is made known to landlord, term of statute of limitations then begins. Adm’r of North v. Barnum, 10 Vt. 220 (1838), same case 12 Vt. 205; Greeno v. Munson, 9 Vt. 37, 1837 Vt. LEXIS 4 (1837).

Tenant in common.

Tenant in common may acquire a title against his co-tenant, by 15 years adverse possession, but this presupposes an ouster. Owen v. Foster, 13 Vt. 263, 1841 Vt. LEXIS 53 (1841).

Tenant in common, to show an ouster of his cotenant, must show acts of possession inconsistent with, and exclusive of, rights of such cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership. Chandler v. Ricker, 49 Vt. 128, 1876 Vt. LEXIS 94 (1876); Leach v. Beattie, 33 Vt. 195, 1860 Vt. LEXIS 92 (1860).

If one joint owner or tenant in common of land claim to have obtained title to the whole by an adverse possession of more than 15 years, he must, in order to sustain such claim, prove notice to, or knowledge on, the part of other tenant of such adverse and hostile claim, and the statute will run against his co-tenant only from time latter receives such notice or obtains such knowledge. Roberts v. Morgan, 30 Vt. 319, 1858 Vt. LEXIS 40 (1858).

Title acquired.

Title acquired by 15 years adverse possession is as perfect for all purposes as though derived by deed, and no verbal transfer, surrender or declaration of the person so acquiring title can have any effect upon it, and he can convey it only by deed executed according to requirements of the statutes. Hodges v. Eddy, 41 Vt. 485 (1868), same case 38 Vt. 327, 52 Vt. 434.

Party who acquires title, to land, under statute, by possession adverse to true owner acquires all title of true owner precisely as if he had deed from him. Hughes v. Graves, 39 Vt. 359, 1867 Vt. LEXIS 18 (1867).

—Generally.

The trial court properly awarded a prescriptive easement to claimants for use of the property owners’ driveway for all types of vehicles, not simply personal passenger vehicles, where it found that the claimants’ predecessor in interest used the driveway “for all types of vehicles including, but not limited to, cars, trucks, horse trailers, and hay wagons.” Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The elements necessary to establish a prescriptive easement and adverse possession are essentially the same: an adverse use or possession which is open, notorious, hostile and continuous for a period of 15 years, and acquiescence in the use or possession by the person against whom the claim is asserted. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

When a prescriptive easement is claimed, the extent of the use must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period; where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was supported by findings that vehicles had been continuously using the area in similar manner since 1920s, until defendant erected barrier in 1984 following survey showing land belonged to defendant, by rule that open and notorious use would be presumed adverse, and by proof of plaintiff’s chain of title from predecessors in interest from 1929. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Extent of plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was sufficiently proved by testimony showing extent of gravel area, surveys showing exact boundary of plaintiff’s land, photographs showing gravel area and loading area, and diagram showing use of gravel area by trucks and cars. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Right to an easement in another’s land acquired by long use and enjoyment is analogous to right acquired by adverse possession; and rules of law applicable to two cases are in harmony. Abatiell v. Morse, 115 Vt. 254, 56 A.2d 464, 1948 Vt. LEXIS 61 (1948).

In this state, in analogy to statute of limitations, prescriptive right, or more properly, presumption of grant to incorporeal hereditaments, arises from 15 years occupancy and possession adverse to owner or proprietor. Mitchell v. Walker, 2 Aik. 266 (Vt. Feb. 1, 1827).

Presumptive rights, acquired by long use and enjoyment, are analogous to those arising under statute, and use and enjoyment must be adverse and uninterrupted for period limited by statute. Shumway v. Simons, 1 Vt. 53, 1827 Vt. LEXIS 6 (1827).

Easement may be extinguished by open, notorious, hostile and continuous possession on the part of owner of servient tenement for statutory period of 15 years. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Water.

Where one entered upon premises of another and took water from spring for more than 15 years continuously, under verbal gift of water so taken, he thereby acquired an absolute right to extent of such use. Blaine v. Ray, 61 Vt. 566, 18 A. 189, 1889 Vt. LEXIS 87 (1889).

Open, notorious and continuous taking of water from a spring for a period of more than 15 years was permissive, and not adverse and under claim of right, when it was consistent with another’s title, though no express license was given. Hunter v. Emerson, 75 Vt. 173, 53 A. 1070, 1903 Vt. LEXIS 110 (1903).

—Generally.

Plaintiffs had shown adverse possession of a knoll and a parking area for the requisite 15-year period when there were boulders around the parking area and a walkway between the house and the parking area at the time that plaintiffs bought the home, no one ever expressed that the parking area or the knoll were not part of the plaintiffs’ property, the realtor parked in the parking area when showing the house, the knoll was covered in construction debris, and a neighbor and a contractor provided credible testimony that the prior owners used both areas as their own since at least 1987 for parking and storage purposes. Parker v. Potter, 2014 VT 109, 197 Vt. 577, 109 A.3d 406, 2014 Vt. LEXIS 111 (2014).

Either an answer by the defendant disputing the plaintiff’s title or a counterclaim challenging the title of the plaintiff and making a claim of ownership of the property in the response to an adverse possessor’s suit to quiet title will toll the statute of limitations, effective on the date the answer or counterclaim was filed. Mahoney v. Tara, LLC, 2014 VT 90, 197 Vt. 412, 107 A.3d 887, 2014 Vt. LEXIS 100 (2014).

After his contribution to a slate quarrying business from 1964 to 1972, plaintiff vacated the property and ceased living in the area for many years, with no objective acts indicating that he intended to continue his possession or return to enjoy the premises. In other words, his “flag on the land” was not kept “flying,” and plaintiff could not show adverse possession by returning for the period from 1985 to 1992. In re Estates of Allen, 2011 VT 95, 190 Vt. 301, 30 A.3d 662, 2011 Vt. LEXIS 96 (2011).

The trial court erred in its decision granting claimants a strip of land upon which their predecessor in interest had built a stone wall and tended a flower garden; the property owners’ could easily have assumed that the maintenance of the garden area was simply part of the predecessor’s work as their groundskeeper and, under these circumstances, despite the existence of the stone wall, the evidence was not sufficient to establish the element of hostility required for an adverse possession claim to succeed. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting a strip of land to claimants where there was no evidence to show that claimants took any act regarding the strip that could be seen as disavowing the property owners’ title. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The trial court erred in its decision granting claimants the title to a 15 foot parking area in front of their barn because there was no evidence challenging the property owners’ regular use of the area and, because the property owners had continuously used the land in question, the statutory period for adverse possession for the parcel had not begun. Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

Separate petitioners each established adverse possession on a portion of a disputed lot where it was shown that they acted no differently than any record title owners, and individually established open, notorious, hostile, and continuous possession of each side of the lot for the period of 15 years. Lysak v. Grull, 174 Vt. 523, 812 A.2d 840, 2002 Vt. LEXIS 234 (2002) (mem.).

Claimant’s use of property was sufficiently continuous to establish adverse possession as to floor of quarry; although land was not always worked to its maximum capacity, there was continuous notice of occupancy, and periods of time when operations slowed or stopped were consistent with exigencies of a family-run business and it was clear that claimant’s family intended to continue working there. N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 736 A.2d 780, 1999 Vt. LEXIS 208 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672, 2000 U.S. LEXIS 186 (2000).

Mere verbal protestations without action to reassert control or dominion over the disputed land does not interrupt the adverse possessor’s interest in the property, but only confirms that the occupation is hostile. Brown v. Whitcomb, 150 Vt. 106, 550 A.2d 1, 1988 Vt. LEXIS 132 (1988).

Trial court rendered sufficient findings for each element of an adverse possession cause of action, despite failing to specifically determine when the statutory period began to run and mislabeling some conclusions of law as findings of fact, where the court found a purchase of the parcel in excess of the statutory period which served as a repudiation of permissible use and findings detailed plaintiff’s continuous, open, notorious and hostile use and occupancy throughout the statutory period. Lawrence v. Pelletier, 154 Vt. 29, 572 A.2d 936, 1990 Vt. LEXIS 18 (1990).

Trial court did not err in finding that defendants could claim title to a disputed parcel of land by adverse possession where evidence presented by defendants, that their family had a vegetable garden on the parcel every summer from 1925 until the 1960’s and concerning buildings located on the land from 1925 until the early 1940’s, clearly established that defendants’ possession of the land was open, notorious, hostile and continuous for the full period set forth in this section. Thibault v. Vartuli, 143 Vt. 178, 465 A.2d 248, 1983 Vt. LEXIS 494 (1983).

To constitute continuous possession of lands, in order to obtain title by adverse possession, the law does not require the occupant to be present on the site at all times, rather, there may be lapses of time between acts of possession, that is the occupancy need only be that consistent with the nature and character of the premises; and in the case of lake-side camps, such occupation is, in the literal sense, only during certain periods of the year. Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971).

Requirement of continuous possession for gaining title by adverse possession may be satisfied by repeated acts of occupancy and whether time between such acts of occupancy interrupts running of the period depends upon circumstances and intention of occupier. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944); Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

Party who has once commenced a possession of land by actual entry, and acts of occupancy upon it, may continue to possess it during intervals when not upon it; hence he may claim it during intervals as well as when actually upon the land doing acts of possession. Webb v. Richardson, 42 Vt. 465, 1869 Vt. LEXIS 106 (1869).

There is presumption that use of land by one who has legal title of record thereto is the exercise of his right to enjoy it and such use, if in exercise of right of ownership, interrupts continuity of adverse possession by another. Barrell v. Renehan, 114 Vt. 23, 39 A.2d 330, 1944 Vt. LEXIS 80 (1944).

By an agreement to arbitrate matters in dispute in contest for possession of land, whereby defendant in possession should continue in possession pending the arbitration, running of statute of limitations was interrupted while possession so continued. Perkins v. Flood, 36 Vt. 273, 1863 Vt. LEXIS 72 (1863).

Duration of possession by husband of land claimed by him to belong to his wife, and to which he made no claim in any other right, may be added to duration of his widow’s possession, immediately following his death, to make a possession of 15 years against adverse claimant, and thus to sustain title of widow or her grantee. Holton v. Whitney, 30 Vt. 405 (1858), same case 28 Vt. 448, 69 A.L.R. 1519.

—Generally.

The trial court properly awarded a prescriptive easement to claimants for use of the property owners’ driveway for all types of vehicles, not simply personal passenger vehicles, where it found that the claimants’ predecessor in interest used the driveway “for all types of vehicles including, but not limited to, cars, trucks, horse trailers, and hay wagons.” Macdonough-Webster Lodge No. 26, Free And Accepted Masons v. Wells, 2003 VT 70, 175 Vt. 382, 834 A.2d 25, 2003 Vt. LEXIS 151 (2003).

The elements necessary to establish a prescriptive easement and adverse possession are essentially the same: an adverse use or possession which is open, notorious, hostile and continuous for a period of 15 years, and acquiescence in the use or possession by the person against whom the claim is asserted. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

When a prescriptive easement is claimed, the extent of the use must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period; where a claimant adduces enough evidence to prove those general outlines with reasonable certainty, it has met its burden on that issue. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was supported by findings that vehicles had been continuously using the area in similar manner since 1920s, until defendant erected barrier in 1984 following survey showing land belonged to defendant, by rule that open and notorious use would be presumed adverse, and by proof of plaintiff’s chain of title from predecessors in interest from 1929. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Extent of plaintiff’s prescriptive easement over portion of gravel area owned by defendant and used by trucks and cars coming to plaintiff’s loading areas was sufficiently proved by testimony showing extent of gravel area, surveys showing exact boundary of plaintiff’s land, photographs showing gravel area and loading area, and diagram showing use of gravel area by trucks and cars. Community Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 559 A.2d 1068, 1989 Vt. LEXIS 31 (1989).

Right to an easement in another’s land acquired by long use and enjoyment is analogous to right acquired by adverse possession; and rules of law applicable to two cases are in harmony. Abatiell v. Morse, 115 Vt. 254, 56 A.2d 464, 1948 Vt. LEXIS 61 (1948).

In this state, in analogy to statute of limitations, prescriptive right, or more properly, presumption of grant to incorporeal hereditaments, arises from 15 years occupancy and possession adverse to owner or proprietor. Mitchell v. Walker, 2 Aik. 266 (Vt. Feb. 1, 1827).

Presumptive rights, acquired by long use and enjoyment, are analogous to those arising under statute, and use and enjoyment must be adverse and uninterrupted for period limited by statute. Shumway v. Simons, 1 Vt. 53, 1827 Vt. LEXIS 6 (1827).

Easement may be extinguished by open, notorious, hostile and continuous possession on the part of owner of servient tenement for statutory period of 15 years. Dwinell v. Alberghini, 115 Vt. 394, 62 A.2d 124, 1948 Vt. LEXIS 86 (1948).

Cited.

Cited in Patch v. Baird, 140 Vt. 60, 435 A.2d 690, 1981 Vt. LEXIS 559 (1981).

Cited.

Cited in In re Town Highway No. 20, 2003 VT 76, 175 Vt. 626, 834 A.2d 17, 2003 Vt. LEXIS 155 (2003) (mem.).

Generally.

This section takes away right of entry. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952); Hughes v. Graves, 39 Vt. 359, 1867 Vt. LEXIS 18 (1867).

This section is not affected by § 557 of this title. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

—Generally.

In a Chapter 7 trustee’s action seeking a determination that a mortgage was invalid and avoidable pursuant to 11 U.S.C.S. §§ 506 and 544(a), a purchase and sale agreement was not invalid because the four year statute of limitations in 9A V.S.A., § 2-725 had expired. As the promissory note was secured by a mortgage, the 15-year period of limitations in 12 V.S.A., § 502 applied. Obuchowski v. McGovern, 2013 Bankr. LEXIS 81 (Bankr. D. Vt. Jan. 9, 2013).

In the case of a promissory note secured by a mortgage, the impetus of securing a debt with a mortgage is to provide the mortgagee with certain protections that the promissory note alone does not provide; among these protections, to which both parties to a mortgage implicitly agree, is an extended statute of limitations which allows a mortgagee to enforce the debt beyond the life of the promissory note. Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950, 2002 Vt. LEXIS 146 (2002).

Mortgagee’s right of entry accrues at time obligation of mortgage becomes overdue and this right of entry is lost if entry is not made within time prescribed by this section. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

Though period of limitation for bringing an action under § 501 of this title ceases to operate with death of mortgagor by virtue of § 557 of this title, period limiting right or title of entry under mortgage to 15 years from time such right of entry accrued continues to operate under this section. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

Right of entry under mortgage is barred by continued interruption and ouster for term of 15 years. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

Interruption or ouster ceases upon acknowledgment of title of mortgagee, by owner of equity of redemption. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

Presumption of payment.

Courts of equity act upon analogy of statute of limitations, and will presume payment and satisfaction of mortgage debt after lapse of 15 years, unless something has intervened to take case out of statute, or to repel presumption of payment resulting from lapse of time. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

Construction.

Where covenantor under covenant of warranty had neither possession of nor title to part of land purportedly conveyed in 1936 and it was undisputed that at the time of the conveyance both the possession and the title to that part was in a third party, the covenantee took neither title nor possession to the land held by the third party and “a final decision” occurred at the time of the conveyance, within the meaning of this section. Hull v. The Federal Land Bank of Springfield, 134 Vt. 201, 353 A.2d 577, 1976 Vt. LEXIS 630 (1976).

Warrant and defend.

In an action for breach of covenant to warrant and defend, statute of limitations was not a defense—as such covenant runs with land. Wilder v. Davenport, 58 Vt. 642, 5 A. 753, 1886 Vt. LEXIS 126 (1886).

Accrual.

Cause of action for breach of a restrictive covenant accrues upon breach of the covenant. Where the alleged covenant violations involve the construction of a noncomplying structure, the construction itself, and not merely preparatory steps that may be necessary predicates to the construction but do not themselves constitute or require the construction, starts the limitations period. Marsh v. McGillvray, 2013 VT 6, 193 Vt. 320, 67 A.3d 943, 2013 Vt. LEXIS 13 (2013).

Action barred.

To the extent neighbors sought to invoke an alleged longstanding covenant violation on Lot A to enjoin construction of a new dwelling on Lot B, the statute of limitations would bar their claims. The neighbors could not reprise a challenge to the guest house on Lot A under the cloak of opposition to proposed and otherwise allowed construction on Lot B. Marsh v. McGillvray, 2013 VT 6, 193 Vt. 320, 67 A.3d 943, 2013 Vt. LEXIS 13 (2013).

Action not barred.

Plaintiff’s reconfiguration of her lot lines and procurement of a revised subdivision permit from the State of Vermont in the 1980s, while necessary steps to building a dwelling on the reconfigured lot, were not sufficient to constitute the alleged violation of the restrictive covenant provisions that defendants invoked in opposition to plaintiff’s building plans, and thus did not trigger the statute of limitations. Marsh v. McGillvray, 2013 VT 6, 193 Vt. 320, 67 A.3d 943, 2013 Vt. LEXIS 13 (2013).

Generally.

This section did not extend to scire facias provided by statute in case where an execution had been levied on property which did not belong to debtor. Baxter v. Tucker, 1 D. Chip. 353 (Vt. 1815).

Construction with other law.

Where appellant argued that the adoption of V.R.C.P. 69 and V.R.C.P. 81 abolished the common law action of debt on a judgment, Supreme Court found no merit in this contention, because the Vermont legislature had made statutory revisions since the adoption of the rules of procedure that directly acknowledged the existence of the action, and, more importantly, V.R.C.P. 69 could not properly abolish the civil action on a judgment, since the enabling act that authorized the rules of procedure expressly stated that “[the] rules thus prescribed shall not abridge, enlarge or modify any substantive rights of any person provided by law.” Koerber v. Middlesex College, 136 Vt. 4, 383 A.2d 1054, 1978 Vt. LEXIS 677 (1978).

Irregular levy.

When irregular levy of execution on real estate was vacated on audita querela, statute did not begin to run on original judgment until execution and levy were vacated. Fairbanks v. Deveraux, 58 Vt. 359, 3 A. 500 (1886), same case 48 Vt. 550.

Pleading and proof.

When the trial court approved proposed qualified domestic relations orders, but the orders were never “qualified” because they were never approved by a plan administrator, there was no judgment to execute or enforce, and the husband’s motion, in which he sought to compel the wife to transfer the retirement funds to him with interest, was not barred under the eight-year limitations period for actions on judgments. Johnston v. Johnston, 2019 VT 34, 210 Vt. 279, 212 A.3d 627, 2019 Vt. LEXIS 59 (2019).

Where New York judgment was rendered in 1991, and the Vermont action was commenced in 2000; thus, the action was prima facie barred by the eight-year statute of limitations for actions on judgments. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

In debt on judgment of court of another state rendered more than eight years before action brought, where defendant gave notice of reliance on statute, and on fact that during more than eight years of that time he had resided in this state and had known attachable property therein, allegation as to residence and possession of property was surplusage as part of defense, and did not need to be proved; and burden was on plaintiff to prove whatever he relied on to show that statute had not run. Capen v. Woodrow, 51 Vt. 106, 1878 Vt. LEXIS 132 (1878).

Probate court judgment.

Where probate court ordered guardian to pay over to ward amount in his hands, action of debt on the judgment would be within this section and action of debt on guardian’s bond would be within § 507 of this title. Probate Court v. Child, 51 Vt. 82, 1878 Vt. LEXIS 127 (1878).

Renewal of judgment.

Appellee’s attempt to enforce a judgment was time-barred, as the statute governing renewal of judgments required that renewals of judgments be brought by filing a new and independent action seeking renewal within eight years of the judgment’s rendition, whereas here, both motions seeking enforcement of the judgments were filed in the original 2006 divorce action; furthermore, the rule governing motions after judgments in family proceedings was limited to post-judgment proceedings in an existing divorce action and did not extend the statute of limitations on judgments. Blake v. Petrie, 2020 VT 92, 213 Vt. 347, 245 A.3d 768, 2020 Vt. LEXIS 104 (2020).

It is evident that the legislature intended the words “rendition of the judgment” in the statute regarding the limitations period for bringing actions on judgments to encompass renewed judgments, and that when a judgment is renewed—in Vermont or elsewhere under another state’s laws—the date of the renewed judgment is controlling for purposes of the statute. If the statute of limitation period has almost run upon the judgment, the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment. H&E Equip. Servs., Inc. v. Cassani Elec., Inc., 2017 VT 17, 204 Vt. 559, 169 A.3d 1308, 2017 Vt. LEXIS 25 (2017).

Under Vermont law, judgments, including renewed judgments, must be acted upon—or renewed again—within eight years of the date they were issued. Here, the 2001 Arizona judgment was renewed in 2011 and plaintiff brought the action in 2015, well within the eight-year limitation period; thus, the enforcement action was not time-barred. H&E Equip. Servs., Inc. v. Cassani Elec., Inc., 2017 VT 17, 204 Vt. 559, 169 A.3d 1308, 2017 Vt. LEXIS 25 (2017).

2001 judgment was not renewed when plaintiffs filed a motion for a possessory writ of attachment and eventually entered into a stipulated agreement with defendant regarding his payment of the 2001 debt. While defendant might have had notice and an opportunity to respond to plaintiffs’ motion, that did not transform plaintiffs’ motion into a complaint. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

Russo plainly requires a new and independent suit initiated by the filing of a complaint to renew a judgment, not the filing of something that is arguably akin to a complaint. Any other conclusion would reintroduce uncertainty into the judgment renewal process. Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, 2013 Vt. LEXIS 33 (2013).

The judgment of the district court (which granted company’s motion for summary judgment in action to renew judgment) was vacated and remanded where the language of the release was exceptionally broad but might reasonably be construed more narrowly to release agents of the principal only in their representative capacities; a trial was necessary to consider what was within the contemplation of the parties when the release was executed, which in turn is to be resolved in the light of the surrounding facts and circumstances under which the parties acted. Okemo Mt., Inc. v. United States Sporting Clays Ass'n (2d Cir. 2004).

Sheriff’s recognizance.

Actions of scire facias upon official recognizance of a sheriff and his sureties were not founded upon judgment and not within this section. Brainerd v. Stewart, 33 Vt. 402, 1860 Vt. LEXIS 114 (1860).

—Generally.

Since judgment creditor could not maintain action upon judgment while execution thereon was in hands of officer who was proceeding in due course to levy and satisfy the same, statute was suspended during same period; but if execution was levied and duly returned, statute began to run upon any unsatisfied balance from date of such return. Thatcher v. Lyons, 70 Vt. 438, 41 A. 428, 1898 Vt. LEXIS 59 (1898).

Statute did not run upon judgment while judgment debtor was imprisoned on execution; but began to run upon his discharge as poor debtor. Ferriss v. Barlow, 8 Vt. 90, 1836 Vt. LEXIS 17 (1836).

Time of commencement of suit.

For purposes of the statute of limitations for renewing a judgment, a 2002 judgment, rather than a 2004 order, controlled, as the 2002 judgment ended the litigation between the parties and finally disposed of the matter, whereas the 2004 order merely set forth the outstanding amount due on the original judgment and reflected the terms under which continuing payments would be made. Flex A Seal v. Safford, 2015 VT 40, 198 Vt. 496, 117 A.3d 823, 2015 Vt. LEXIS 19 (2015).

Same tolling rule applicable to contract actions applies to actions on judgment debts. Thus, defendant’s acknowledgment and payment of a judgment debt tolled the limitations period for renewing a judgment. Flex A Seal v. Safford, 2015 VT 40, 198 Vt. 496, 117 A.3d 823, 2015 Vt. LEXIS 19 (2015).

Action to renew a judgment was timely because the action to renew a judgment was brought within eight years after the underlying judgment was rendered; that the statute of limitations was tolled from the date the action to renew a judgment was brought was not affected by the fact the appellate court vacated the district court’s grant of summary judgment in favor of the party that had sought renewal. Okemo Mt., Inc. v. Sikorski, 2003 U.S. Dist. LEXIS 20553 (D. Vt. Oct. 23, 2003), vacated, 376 F.3d 102, 2004 U.S. App. LEXIS 14674 (2d Cir. 2004).

While ordinarily no advantage is gained by bringing an action in the same state upon a judgment if the statute of limitation period has almost run upon the judgment, pursuant to 12 V.S.A. § 506 , the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment; this is precisely what the judgment creditor did in the case at bar. The fact that his original judgment was “dormant” at the time he commenced his action is not a bar to the action. Koerber v. Middlesex College, 136 Vt. 4, 383 A.2d 1054, 1978 Vt. LEXIS 677 (1978).

Time of commencement of suit to avoid statute was day when writ issued, but such writ must be served and returned. Day v. Lamb, 7 Vt. 426 (1835), same case 8 Vt. 407.

Void levy.

Where part of judgment was apparently satisfied by levy of record of execution on real estate acquiesced in by both parties, and balance of judgment was revived by scire facias, and afterwards levy was declared void, amount of levy could be revived and statute ran only from time levy was declared void. Hall v. Hall, 8 Vt. 156 (1836), same case 5 Vt. 304.

Award under seal.

An award under seal was a specialty within meaning of this section, although the submission was by parol. Halnon v. Halnon, 55 Vt. 321, 1883 Vt. LEXIS 34 (1883).

Burden of proof.

Plaintiff who pleads that a written instrument is a specialty has burden of proof on that issue. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31, 1949 Vt. LEXIS 84 (1949).

Definitions.

A specialty within meaning of this section is a writing sealed and delivered—a contract under seal. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31, 1949 Vt. LEXIS 84 (1949); Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Common law required that a seal be of wax or a wafer or something that would take an impression, and word “seal” after signature was not enough to make an instrument a specialty at common law. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31 (1948). See, however, 1 V.S.A. § 134 , definition of “seal.” .

Guardian’s bond.

In action for debt on guardian’s bond, brought more than eight years after guardian had settled his account with court, and he had been ordered to pay over to ward amount in his hands, right of action accrued at time of such settlement and order, action was barred by this section, and it made no difference whether action was considered as action in favor of probate court or of prosecutor and real plaintiff. Probate Court v. Child, 51 Vt. 82, 1878 Vt. LEXIS 127 (1878).

Modification of statute.

Section 555 of this title purports to modify this section in the case of fraudulent concealment. Troy v. American Fidelity Co., 120 Vt. 410, 143 A.2d 469, 1958 Vt. LEXIS 119 (1958).

Sheriff’s recognizance.

Actions of scire facias upon official recognizance of a sheriff and his sureties were not founded on specialties, and not within this section. Brainerd v. Stewart, 33 Vt. 402, 1860 Vt. LEXIS 114 (1860).

Time of commencement of action.

An action is deemed to have been commenced when writ issued. McAllister v. Northern Oil Co., 115 Vt. 465, 64 A.2d 31, 1949 Vt. LEXIS 84 (1949).

Generally.

Written contract, having usual form of a promissory note in every particular, except that it was payable in some specific article, was so far a promissory note, that, if witnessed, it was not barred by the statute of limitations until 14 years. Bragg v. Fletcher, 20 Vt. 351 (1848); Leonard v. Walker, Brayt. 203 (1820).

Applicability.

Statute governing actions specially limited by other provisions signals that applicable statutes of limitations outside of title 12, chapter 23 trump potentially applicable limitations periods within that chapter. Accordingly, the six-year statute of limitations in the Uniform Commercial Code for negotiable demand notes prevailed over the 14-year limitations period for witnessed promissory notes in chapter 23 of title 12. Clark v. Distefano, 2018 VT 82, 208 Vt. 139, 195 A.3d 379, 2018 Vt. LEXIS 111 (2018).

Attesting witness.

Where maker of notes wrote on back thereof word “renewed,” together with date and his signature, and caused another person to sign as witness to his signature, this constituted new promise to pay, renewed notes, and made them “signed in the presence of an attesting witness,” within meaning of this section. Chaffee’s Sons v. Estate of Blanchard, 105 Vt. 389, 165 A. 912 (1933), same case 105 Vt. 442, 168 A. 695.

Where promissory note was attested by wife of payee as witness with knowledge and consent of maker, he could not afterwards object that it was not a witnessed note within this section. Alexander v. Hanley, 64 Vt. 361, 24 A. 242, 1892 Vt. LEXIS 49 (1892).

If promissory note was signed by two or more, witness thereto, if there be but one, must have been present and signed as witness to execution of whole note, to allow an action to be brought upon it at any time within 14 years. Lapham v. Briggs, 27 Vt. 26, 1854 Vt. LEXIS 90 (1854).

Pleading.

Indorsement by maker of witnessed guaranty upon promissory note within 14 years before bringing of the suit was no answer to statute when pleaded to declaration upon note itself, and whatever effect of such an indorsement might be as a contract in and of itself, it did not convert original note into witnessed note. Fletcher v. Munroe, 61 Vt. 406, 17 A. 799, 1889 Vt. LEXIS 57 (1889).

Plea of statute of limitations of six years was sufficient answer to general count in debt for money had and received; and, if a witnessed note was offered in evidence under such a plea, advantage of the 14 years limitation was thereby waived. Lapham v. Briggs, 27 Vt. 26, 1854 Vt. LEXIS 90 (1854).

Declaration describing a note without any consideration expressed in the note, but describing a consideration distinct from the note itself, set forth a note within statute. Leonard v. Walker, Brayt. 203 (1820).

Running of statute.

When note itself indicates that calls for payment are to be indefinitely prospective, and to be made as might suit wants and convenience of payee, there is no ground furnished upon which law can assume any fixed point as limit to reasonable time for making demand, and therefore give operation to statute of limitations. C & T Discount Corp. v. Sawyer, 123 Vt. 238, 185 A.2d 462, 1962 Vt. LEXIS 234 (1962).

Statute of limitations will not begin to run if there is something in note or in circumstances under which it was given showing that actual demand or delay for payment was contemplated by parties. C & T Discount Corp. v. Sawyer, 123 Vt. 238, 185 A.2d 462, 1962 Vt. LEXIS 234 (1962).

Statute did not begin to run on note until principal, or at least some separate and distinct portion of principal, became due and payable—and then only on such distinct and separate portion, and interest, accruing from year to year, was not thus separated from principal demand, and consequently statute did not run on it, until principal was barred by statute. Grafton Bank v. Doe, 19 Vt. 463, 1847 Vt. LEXIS 62 (1847).

—Generally.

Action brought for damages sustained by corporation by reason of negligence of its directors or trustees was an action in tort, and it was necessary to commence such action within six years after cause of action accrued. 1940 Vt. Op. Att'y Gen. 115.

Action for negligence against bank trustees for failure to give notice of surety of defalcation of bonded employee must be commenced within six years of final date notice could have been given, which was date action accrued. 1940 Vt. Op. Att'y Gen. 115.

—Generally.

Action brought for damages sustained by corporation by reason of negligence of its directors or trustees was an action in tort, and it was necessary to commence such action within six years after cause of action accrued. 1940 Vt. Op. Att'y Gen. 115.

Action for negligence against bank trustees for failure to give notice of surety of defalcation of bonded employee must be commenced within six years of final date notice could have been given, which was date action accrued. 1940 Vt. Op. Att'y Gen. 115.

I. GENERALLY.

Applicability.

Vermont case law does not appear to establish a common law cause of action for predatory lending. Regarding 9 V.S.A. § 2453 , assuming arguendo that such a claim could be brought under Vermont’s Unfair and Deceptive Trade Practices Act, 9 V.S.A. § 2451 et seq., it would be governed by Vermont’s general six-year statute of limitations on civil claims, 12 V.S.A. § 511 , 9 V.S.A. § 2451 et seq. Monty v. U.S. Bank, N.A., 2013 Bankr. LEXIS 2355 (Bankr. D. Vt. June 10, 2013).

Mere fact that economic harm is alleged will not invariably invoke the general six-year statute of limitations applicable in civil actions where the gravamen or essence of the claim remains personal injury. Thus, the case had to be remanded for the trial court to consider whether the claims for economic harm were sufficiently distinct from the claims for emotional distress to be governed by the six-year statute of limitations and therefore remained timely. Eaton v. Prior, 2012 VT 54, 192 Vt. 249, 58 A.3d 200, 2012 Vt. LEXIS 56 (2012).

Six-year statute of limitations applied to malpractice claim brought by mother against psychologist with whom she contracted in connection with custody dispute; although mother’s claim sought personal injury damages for emotional distress, to which a three-year limitation period would normally apply, some of the damages she sought were for economic losses that did not constitute personal injuries, and thus the six-year limitation period applied. Politi v. Tyler, 170 Vt. 428, 751 A.2d 788, 2000 Vt. LEXIS 40 (2000).

Court was required to look to underlying harm in determining applicable statute of limitations, and thus indemnification action for damage to condominiums was properly categorized as an action for damage to real property as opposed to personal property; same limitation period and date of accrual was therefore to be applied to indemnity action as would be applied to underlying action. Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 739 A.2d 1222, 1999 Vt. LEXIS 234 (1999).

The nature of the harm done, rather than plaintiff’s characterization of the action, is the determining factor in construing the applicability of this section. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

Complaint alleging that use of insecticide in barn killed one cow and caused damage to others stated a cause of action for damage to personal property within the meaning of section 512(5) of this title, notwithstanding plaintiff’s assertion that the complaint sounded in fraud and should be governed by this section because he had purchased the insecticide under the representation that it was safe for spraying animals. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

Determination of applicable limitation period depends on nature of the harm suffered rather than nature of action brought. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

It is the nature of the harm done which determines which limitations provision applies. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Burden of proof.

Burden of proving that claim is barred by statute of limitations rests on party asserting defense. Fucci v. Moseley & Fucci Assocs., 170 Vt. 626, 751 A.2d 760, 2000 Vt. LEXIS 5 (2000) (mem.).

Burden of proving that claim was barred by statute rested on party asserting bar. Goodyear Metallic Rubber Co. v. Baker's Est., 81 Vt. 39, 69 A. 160, 1908 Vt. LEXIS 114 (1908); New England Fire Ins. Co. v. Haynes, 71 Vt. 306, 45 A. 221, 1899 Vt. LEXIS 179 (1899).

Control by court.

Subsection (a) of this rule, allowing the “court [to] exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence,” does not allow courts to sidestep the call of V.R.C.P. 43(a) for testimony “orally in open court.” State v. Carroll, 2003 VT 57, 175 Vt. 571, 830 A.2d 89, 2003 Vt. LEXIS 139 (2003) (mem.).

Demand.

Where a demand is necessary to perfect claim, statute only runs from demand made. Thrall v. Estate of Mead, 40 Vt. 540, 1868 Vt. LEXIS 44 (1868); Stanton v. Estate of Stanton, 37 Vt. 411, 1865 Vt. LEXIS 3 (1865); Page v. Thrall, 11 Vt. 230, 1839 Vt. LEXIS 54 (1839); Staniford v. Tuttle, 4 Vt. 82, 1831 Vt. LEXIS 64 (1831); Hutchinson v. Parkhurst, 1 Aik. 258 (Vt. Feb. 1, 1826); Poultney v. Wells, 1 Aik. 180 (Vt. 1826).

When delay in making demand is expressly contemplated from terms of note, there is no rule of law that requires the demand to be made within statutory period for bringing an action. New England Fire Ins. Co. v. Haynes, 71 Vt. 306, 45 A. 221, 1899 Vt. LEXIS 179 (1899).

Where debt is payable on demand, demand will not be presumed within six years, if terms of contract or circumstances of transaction are such as to indicate that parties contemplated delay in making of demand. Smith v. Franklin, 61 Vt. 385, 17 A. 838, 1889 Vt. LEXIS 52 (1889).

Where promissory note payable “five months from date” bore written consent of makers that payee might collect at any time “by discounting a proportional amount of interest that shall have been paid in advance”, statute began to run at once, without demand and without tender of such “proportional amount.” Dawley v. Wheeler, 52 Vt. 574, 1880 Vt. LEXIS 184 (1880).

No presumption of demand and refusal arose from lapse of time, but rather the contrary, and statute had not run upon note. Beeman v. Cook, 48 Vt. 201, 1876 Vt. LEXIS 9 (1876).

Creditor may be guilty of such unreasonable neglect in omitting to make demand as will set statute in operation without demand. Thrall v. Estate of Mead, 40 Vt. 540, 1868 Vt. LEXIS 44 (1868).

Where instrument itself indicated that calls for payment were to be indefinitely prospective, and to be made as might suit wants and convenience of payee, there was no ground upon which law could assume any fixed point, as limit to reasonable time for making demand, and therefrom give operation to statute of limitations. Stanton v. Estate of Stanton, 37 Vt. 411, 1865 Vt. LEXIS 3 (1865).

When statute was pleaded to an action on promissory note payable “when demanded,” plaintiff would not be allowed to prove note had been lost for a time, in order to rebut presumption that a demand had been made. Kingsbury v. Butler, 4 Vt. 458, 1832 Vt. LEXIS 59 (1832).

Demand may as well be presumed, as any other fact, from lapse of time and such dealings between parties as render it very improbable that claim could have been forgotten while it was worthy of any consideration. Staniford v. Tuttle, 4 Vt. 82, 1831 Vt. LEXIS 64 (1831).

Estoppel.

In absence of either a promise or any misrepresentation or concealment of a fraudulent character, there cannot be an equitable estoppel precluding a defendant from setting up the bar of the statute of limitations, and existence of family relationship did not allow brother to avoid bar of statute of limitations in his suit for specific performance. White v. White, 136 Vt. 271, 388 A.2d 386, 1978 Vt. LEXIS 732 (1978).

Where brother and three sisters were heirs of equal standing to real estate and sisters agreed prior to closing of the estate to sell their interests to brother, and one sister later promised to perform, even assuming brother was entitled to rely on the new promise and it was an attempt to perform raising estoppel as a bar to claim statute of limitations applied, there could be no estoppel where brother’s specific performance action came more than seven years after the new promise. White v. White, 136 Vt. 271, 388 A.2d 386, 1978 Vt. LEXIS 732 (1978).

Law and chancery.

This section applied only to actions at law. Spear & Carlton v. Newell, 13 Vt. 288, 1841 Vt. LEXIS 61 (1841).

In cases where courts of law and equity had concurrent jurisdiction, and claim was barred at law, it would not be suffered to be revived in court of equity. Tharp v. Tharp, 15 Vt. 105, 1843 Vt. LEXIS 15 (1843).

—Generally.

For purposes of the six-year statute of limitations, appellant was placed on inquiry notice by April 2008, when he learned that a deed had been recorded which allegedly transferred title out of his name into someone else’s, and when he was also informed by the mortgagee that an unauthorized transfer of the property had occurred, or at the latest in May 2008, when his bankruptcy attorney conducted a title search in relation to his bankruptcy proceedings and discovered the conveyance. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Trial court did not err in determining that plaintiffs’ claim for legal malpractice accrued before the conclusion of the appeal in the underlying proceeding. Fritzeen v. Gravel, 2003 VT 54, 175 Vt. 537, 830 A.2d 49, 2003 Vt. LEXIS 92 (2003) (mem.).

Cause of action for negligent misrepresentation and consumer fraud in connection with the purchase of a house accrued when plaintiffs received a letter stating that the property was zoned as a single-family dwelling and that multiple-family housing was not allowed in the district. Galfetti v. Berg, Carmolli & Kent Real Estate Corp., 171 Vt. 523, 756 A.2d 1229, 2000 Vt. LEXIS 131 (2000) (mem.).

In school district’s action against architects alleging negligent design of leaky roof of school building in violation of contract for architectural services, court would not hold that statute of limitations did not begin to run until the plaintiff discovered the precise cause of the leaks. Union School District #20 v. Lench, 134 Vt. 424, 365 A.2d 508, 1976 Vt. LEXIS 694 (1976).

As a general rule, a cause of action accrues when the act upon which the legal action is based took place, not when the act is discovered. In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Rule that the cause of action shall be deemed to accrue as of the date of the discovery of the injury should be read into six-year statute of limitations for civil actions. University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Insured’s action to recover uninsured motorist benefits accrued two months after she retained legal counsel, by which time counsel should have discovered motorist’s uninsured status and communicated it to insured, thereby making insured’s claim one timely filed for purposes of Vermont’s 6 year statute of limitations. Kauffman v. State Farm Mutual Automobile Ins. Co., 857 F. Supp. 23, 1994 U.S. Dist. LEXIS 9544 (D. Vt. 1994).

Right of action accrues when plaintiff can first sue for and recover demand, and statute begins to run from that date. Lycoming Fire Ins. Co. v. Batcheller, 62 Vt. 148, 19 A. 982, 1890 Vt. LEXIS 84 (1890); Farnham v. Thomas, 56 Vt. 33, 1884 Vt. LEXIS 47 (1884).

Taking out of writ was commencement of action within statute of limitations. Chapman v. Goodrich, 55 Vt. 354, 1883 Vt. LEXIS 43 (1883); Allan v. Mann, 1 D. Chip. 94 (Vt. 1797).

Computation of time and tolling of statute, see also annotations under subch. 3 of this chapter.

Pleading.

In action on a note executed in Florida more than six years prior to bringing of suit, on which the printed word “seal” appeared after signature, six-year statute of limitations was well pleaded on plaintiff’s exception to overruling of demurrer. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Where one by contract in writing had bound himself to convey certain lands which he had bid off at vendue, statute of limitations was good plea in a bill in chancery brought by other contracting party to compel him to specific performance, or to pay over what he had received on sale of lands. Adm'r of Collard v. Tuttle, 4 Vt. 491, 1832 Vt. LEXIS 95 (1832).

Where debt was barred by statute, creditor could not plead it in bar to suit brought by debtor against him in reference to an independent transaction. Parker v. National Life Ins. Co., 61 Vt. 65, 17 A. 724, 1888 Vt. LEXIS 112 (1888).

Purpose.

Statute of limitations is not regulation of public policy, but for benefit of individuals. State Trust Co. v. Sheldon, 68 Vt. 259, 35 A. 177, 1895 Vt. LEXIS 32 (1895).

Waiver of statute.

Right to plead statute is a personal privilege of which debtor may avail himself or not as he chooses. Hartford v. School District, 69 Vt. 147, 37 A. 252, 1896 Vt. LEXIS 23 (1896).

It is competent for the makers of promissory note to stipulate therein that they will waive statute. Lyndon Sav. Bank v. International Co., 78 Vt. 169, 62 A. 50 (1905), same case 75 Vt. 224, 54 A. 191, 18 B.U.L. Rev.; State Trust Co. v. Sheldon, 68 Vt. 259, 35 A. 177, 1895 Vt. LEXIS 32 (1895); Burton v. Stevens, 24 Vt. 131, 1852 Vt. LEXIS 10 (1852).

“Good at any time,” endorsed on note and signed and dated by the payor, was not a waiver of statute, but was merely an acknowledgment of debt evidenced by note, from which promise to pay may be implied. Rowell v. Estate of Lewis, 72 Vt. 163, 47 A. 783, 1900 Vt. LEXIS 107 (1900).

Abolished school district had right to pay just debt though barred by statute, and could insist that such debt be deducted in determining balance due from district to town. Hartford v. School District, 69 Vt. 147, 37 A. 252, 1896 Vt. LEXIS 23 (1896).

Recognizor on writ may pay costs for which he was held, though barred by statute, and recover from his principal amount so paid. Smith v. Lincoln, 54 Vt. 382, 1882 Vt. LEXIS 20 (1882).

—Generally.

For purposes of the six-year statute of limitations, appellant was placed on inquiry notice by April 2008, when he learned that a deed had been recorded which allegedly transferred title out of his name into someone else’s, and when he was also informed by the mortgagee that an unauthorized transfer of the property had occurred, or at the latest in May 2008, when his bankruptcy attorney conducted a title search in relation to his bankruptcy proceedings and discovered the conveyance. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Trial court did not err in determining that plaintiffs’ claim for legal malpractice accrued before the conclusion of the appeal in the underlying proceeding. Fritzeen v. Gravel, 2003 VT 54, 175 Vt. 537, 830 A.2d 49, 2003 Vt. LEXIS 92 (2003) (mem.).

Cause of action for negligent misrepresentation and consumer fraud in connection with the purchase of a house accrued when plaintiffs received a letter stating that the property was zoned as a single-family dwelling and that multiple-family housing was not allowed in the district. Galfetti v. Berg, Carmolli & Kent Real Estate Corp., 171 Vt. 523, 756 A.2d 1229, 2000 Vt. LEXIS 131 (2000) (mem.).

In school district’s action against architects alleging negligent design of leaky roof of school building in violation of contract for architectural services, court would not hold that statute of limitations did not begin to run until the plaintiff discovered the precise cause of the leaks. Union School District #20 v. Lench, 134 Vt. 424, 365 A.2d 508, 1976 Vt. LEXIS 694 (1976).

As a general rule, a cause of action accrues when the act upon which the legal action is based took place, not when the act is discovered. In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Rule that the cause of action shall be deemed to accrue as of the date of the discovery of the injury should be read into six-year statute of limitations for civil actions. University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Insured’s action to recover uninsured motorist benefits accrued two months after she retained legal counsel, by which time counsel should have discovered motorist’s uninsured status and communicated it to insured, thereby making insured’s claim one timely filed for purposes of Vermont’s 6 year statute of limitations. Kauffman v. State Farm Mutual Automobile Ins. Co., 857 F. Supp. 23, 1994 U.S. Dist. LEXIS 9544 (D. Vt. 1994).

Right of action accrues when plaintiff can first sue for and recover demand, and statute begins to run from that date. Lycoming Fire Ins. Co. v. Batcheller, 62 Vt. 148, 19 A. 982, 1890 Vt. LEXIS 84 (1890); Farnham v. Thomas, 56 Vt. 33, 1884 Vt. LEXIS 47 (1884).

Taking out of writ was commencement of action within statute of limitations. Chapman v. Goodrich, 55 Vt. 354, 1883 Vt. LEXIS 43 (1883); Allan v. Mann, 1 D. Chip. 94 (Vt. 1797).

Computation of time and tolling of statute, see also annotations under subch. 3 of this chapter.

II. PARTICULAR ACTIONS.

Attorney’s employment.

Where attorney’s employment in suit was continuous, statute did not begin to run on his charges until case ended, or he was otherwise discharged. Noble v. Bellows, 53 Vt. 527 (1877); Davis v. Smith, 48 Vt. 52 (1875), same case 43 Vt. 269.

Bank account.

Statute was not bar to action by bank depositor to recover amount of overcharge in his account, notwithstanding that plaintiff, more than six years before commencement of suit, drew out balance due as shown by bank books and closed his account for some two years. Goodell v. Brandon Nat'l Bank, 63 Vt. 303, 21 A. 956, 1891 Vt. LEXIS 106 (1891).

Book account.

There was no difference between actions of assumpsit and book account, in respect of what items are barred by statute of limitations. Holt v. Howard, 77 Vt. 49, 58 A. 797, 1904 Vt. LEXIS 94 (1904).

When it appeared that plaintiff and defendant intended that all their business deal except notes should be mutual and open account, and that charges of each should apply in payment of the charges of other, all such business deal except notes should, in respect of statute, be reciprocally applied as proper matter of an open and current book account. Holt v. Howard, 77 Vt. 49, 58 A. 797, 1904 Vt. LEXIS 94 (1904).

In action of book account one party could credit other with items which were proper items of credit and thereby avoid operation of statute, although other party claimed nothing by reason of such items and insisted that they should not be credited to him. Bates v. Sabin, 64 Vt. 511, 24 A. 1013 (1892); Davis v. Smith, 48 Vt. 52 (1875), same case 43 Vt. 269.

Breach of fiduciary duty.

Defendants’ counterclaim against a trustee’s estate for breach of fiduciary duty was time-barred. At the time they rejected the trustee’s proposition in 1993, defendants knew that the trustee had been both a trustee and a beneficiary since the trust’s creation, and defendants were sufficiently informed of the circumstances surrounding ownership of the property in question to enable them to assess the trustee’s actions and seek redress if they believed she had breached her fiduciary duties as trustee. In re Estate of Alden v. Alden, 2011 VT 64, 190 Vt. 401, 35 A.3d 950, 2011 Vt. LEXIS 71 (2011).

Buildings, recovery of.

Where tenant, or one erecting building by license on land of another, permitted them to remain in the possession of owner of the freehold for more than six years after expiration of term, or abandonment of possession, statute would bar all claim for their recovery. Preston v. Briggs, 16 Vt. 124, 1844 Vt. LEXIS 26 (1844).

Condemnation.

The general statute of limitations for civil actions applies to inverse condemnation actions. Department of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, 177 Vt. 623, 869 A.2d 603, 2004 Vt. LEXIS 314 (2004) (mem.).

Contract to assume liability.

Where contract between ski lift resort and manufacturer of ski lift whereby resort, which purchased the lift, assumed all legal responsibility for personal injury resulting from operation of the lift, was basis upon which plaintiff, who obtained judgment against manufacturer in personal injury action alleging negligent design and manufacture, sought to enforce the judgment against resort, six year statute of limitations for actions founded on contract began to run on date of injury and the action was barred where the six years were up before action was brought. Furlon v. Haystack Mountain Ski Area, Inc., 136 Vt. 266, 388 A.2d 403, 1978 Vt. LEXIS 731 (1978).

Contract to sell.

The four-year statute of limitations contained in 9A V.S.A § 2—275, not the general six-year statute of limitations in this section, applies to deficiency actions on retail installment sales contracts. DaimlerChrysler Services North America v. Ouimette, 2003 VT 47, 175 Vt. 316, 830 A.2d 38, 2003 Vt. LEXIS 88 (2003).

Where action for specific enforcement of oral contract to sell came more than six years after letter refusing to sell and describing the transaction, action was barred by the Statute of Limitations. Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408, 1974 Vt. LEXIS 274 (1974).

Where brother and three sisters were heirs of equal standing to real estate and sisters agreed prior to closing of estate to sell their interests to brother, brother’s reliance on the promise did not estop sisters from using statute of limitations as a defense in brother’s action for specific performance of the agreement. White v. White, 136 Vt. 271, 388 A.2d 386, 1978 Vt. LEXIS 732 (1978).

Contracts.

Cause of action for breach of contract accrues when the breach occurs, not when it is discovered. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Conversion.

Mere neglect of defendant who took up plaintiff’s stray heifer to post and advertise it as required by statute did not constitute conversion thereof so as to start the statute before demand and refusal. Andrews v. Carl, 77 Vt. 172, 59 A. 167, 1904 Vt. LEXIS 111 (1904).

Where defendant purchased in good faith plaintiff’s personal property of one who had its possession but no right to sell it, and used it as his own for more than six years, claiming title thereto, there was a conversion, but statute commenced to run at the time of sale and was a bar to an action of trover. Merrill v. Bullard, 59 Vt. 389, 8 A. 157, 1887 Vt. LEXIS 105 (1887).

Deferred compensation.

Fact that there was no fixed date for corporation’s payment of deferred compensation supported conclusion that its obligation to pay did not come due until shareholder demanded payment, and thus shareholder’s claim accrued when corporation refused his demand. Fucci v. Moseley & Fucci Assocs., 170 Vt. 626, 751 A.2d 760, 2000 Vt. LEXIS 5 (2000) (mem.).

Discrimination.

When a couple claimed that a town and its officials discriminated against them in zoning and permitting decisions on the basis of their sexual orientation, the six-year statute of limitations was applicable, because the nature of the alleged harms was mixed; the couple claimed the town’s actions harmed their rights to privacy and quiet enjoyment of property, fostered a hostile environment, and caused financial harm in terms of attorney fees and bankruptcy. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

The six-year “catch all” statute of limitations is suitable for actions brought for recovery of attorney’s fees and costs by the prevailing party under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. J.B. by and through C.B. v. Essex-Caldonia Super., 943 F. Supp. 387, 1996 U.S. Dist. LEXIS 16295 (D. Vt. 1996).

Three year personal injury statute of limitations, rather than six year statute governing civil actions, applied to claims brought under federal and state law alleging discrimination on basis of handicap. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Guardian’s account.

Statute was not applicable to account of guarding against his ward while relation subsisted; and after its termination, lapse of time would not bar guardian’s claim when delay was sufficiently explained by circumstances of case. Kimball v. Ives, 17 Vt. 430, 1845 Vt. LEXIS 56 (1845).

Indemnification.

Trial court erred in applying three-year statute of limitations to bar indemnification claims against architects for failed attempt to correct problems in condominium project; action was properly considered as one for damage to real property, not personal property, and therefore general six-year statute of limitations applied. Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 739 A.2d 1222, 1999 Vt. LEXIS 234 (1999).

Lost profits.

Landowners’ claim for lost profits stemming from engineering firm’s defective subdivision survey could not be construed as a claim for damage to personal property, and claim was therefore governed by six-year statute of limitations applicable to civil actions generally, rather than three-year statute of limitations governing actions for damage to personal property. Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 752 A.2d 26, 2000 Vt. LEXIS 50 (2000).

Malicious prosecution.

Where plaintiff alleged that defendants violated his rights when initiating counterclaim against him and he sought only costs for defense of his counterclaim, as opposed to alleging any emotional or physical harm, his claim fell within statute of limitations under this section and not that for injuries to the person under 12 V.S.A. § 512 . Bentley v. Northshore Development, Inc., 935 F. Supp. 500, 1996 U.S. Dist. LEXIS 12395 (D. Vt. 1996).

Malpractice.

In attorney malpractice case arising from defendant’s allegedly deficient representation in juvenile proceeding in which State sought determination that plaintiff’s child was in need of care and supervision, plaintiff’s claims for damages resulting from costs incurred to secure the return of her child were governed by six-year limitation period for actions involving economic losses that do not constitute personal injuries. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

At trial for attorney malpractice arising out of defendant’s allegedly deficient representation in juvenile proceeding in which state sought determination that child was in need of care and supervision, where defendant asserted valid defense of three-year statute of limitations as to claims of emotional distress and there were no genuine issues of material fact, Trial Court properly granted defendant summary judgment as to those claims, but reversal and remand was required as to claims of economic loss, which were governed by six-year limitation period. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

The discovery rule applies to legal malpractice actions, and discovery of both the injury and its cause is required to determine when the cause of action accrues. Howard Bank v. Estate of Pope, 156 Vt. 537, 593 A.2d 471, 1991 Vt. LEXIS 96 (1991).

Suit against hospital for damages allegedly caused by injection of wrong substance could not be brought within limitation period of this section where it could not be found that Vermont Supreme Court would recognize a cause of action in contract under such facts. Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 1970 U.S. Dist. LEXIS 9833 (D. Vt. 1970).

While Vermont Supreme Court would probably rule that administration by a hospital to a patient of anesthetics carries with it implied warranties for the breach of which an action would lie, administration of wrong drug, that is, insulin instead of anesthetic, did not breach such warranties, if applicable, and breach of warranties could not be used as basis for bringing action under this section. Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 1970 U.S. Dist. LEXIS 9833 (D. Vt. 1970).

Marriage, breach of promise of.

In case of mutual promise to marry there was no right of action until there was a breach of promise; and until such breach statute did not commence to run. Dyer v. Lalor, 94 Vt. 103, 109 A. 30, 1920 Vt. LEXIS 175 (1920).

Mortgage notes.

In the case of a promissory note secured by a mortgage, the impetus of securing a debt with a mortgage is to provide the mortgagee with certain protections that the promissory note alone does not provide; among these protections, to which both parties to a mortgage implicitly agree, is an extended statute of limitations which allows a mortgagee to enforce the debt beyond the life of the promissory note. Huntington v. McCarty, 174 Vt. 69, 807 A.2d 950, 2002 Vt. LEXIS 146 (2002).

Award of summary judgment to defendant on the grounds that plaintiff’s claims were barred by the statute of limitations was reversed because there existed numerous genuine issues of material fact regarding events which could constitute part of a “continuous practice and policy of discrimination,” tolling the statute of limitations from the time the last discriminatory act, performed in furtherance of the discriminatory practice, took place. Lee v. University of Vermont, 173 Vt. 626, 800 A.2d 444, 2002 Vt. LEXIS 59 (2002).

In action for violations of the Vermont Fair Employment Practices Act prohibiting discrimination against qualified individuals with disabilities, plaintiff’s claim for emotional distress resulting from her loss of employment was governed by the three-year limitation period under 12 V.S.A. § 512(4) , while the six-year limitation of this section governed her claim for economic loss of income and benefits. Egri v. United States Airways, Inc., 174 Vt. 443, 804 A.2d 766, 2002 Vt. LEXIS 139 (2002).

Note secured by real estate mortgage outlaws in six years from time cause of action thereon accrues. Houghton v. Tolman, 74 Vt. 467, 52 A. 1032, 1902 Vt. LEXIS 160 (1902).

Action for interest on mortgage note was barred by statute when an action for principal was so barred. Porter's Adm's v. Shattuck's Est., 75 Vt. 270, 54 A. 958, 1903 Vt. LEXIS 127 (1903).

Mutual account.

In mutual accounts statute begins to run from date of last item of credit proved on trial and not from that of last item of debt. George v. Vermont Farm Mach. Co., 65 Vt. 287, 26 A. 722, 1893 Vt. LEXIS 55 (1893); Hodge v. Manley, 25 Vt. 210, 1853 Vt. LEXIS 25 (1853); Abbott v. Keith, 11 Vt. 525, 1839 Vt. LEXIS 117 (1839); Chipman v. Bates, 5 Vt. 143, 1831 Vt. LEXIS 77 (1831).

When account was all on one side, it had not character of mutual account, and as to statute of limitations, cause of action arose from date of each item, and they were respectively barred when more than six years had intervened between their dates and commencement of suit. Hodge v. Manley, 25 Vt. 210, 1853 Vt. LEXIS 25 (1853).

Negligence.

Plaintiffs’ action for negligence and breach of contract was time-barred because by 2005 at the latest, plaintiffs were aware of facts sufficient to lead any reasonable homeowner to investigate the condition of their roof when they had experienced a major, unprecedented leak for which they filed an insurance claim, rust spots had appeared, the ice damning problem which the roof was supposed to mitigate was worse than ever, and plaintiffs had attempted various repairs. While they might not have known the extent of the defect in the roof, it was apparent by 2005 that it was defective. Abajian v. Truexcullins, Inc., 2017 VT 74, 205 Vt. 331, 176 A.3d 524, 2017 Vt. LEXIS 94 (2017).

Cause of action alleging that fire was caused by improper design and construction of fireplace in addition to plaintiff’s home which defendant built accrued when plaintiff knew or reasonably ought to have known of the damage allegedly caused by defendant, not when the negligent act occurred. Congdon v. Taggart Brothers, 153 Vt. 324, 571 A.2d 656, 1989 Vt. LEXIS 249 (1989).

Pledge.

When corporation had immediate notice from pledgee that certain of its corporate stock was pledged as collateral security, statute did not run in favor of corporation, which had acquired subsequent lien, as against pledgee’s right to enforce pledge. White River Sav. Bank v. Capital Sav. Bank & Trust Co., 77 Vt. 123, 59 A. 197, 1904 Vt. LEXIS 101 (1904).

Promissory notes.

Trustee’s suit to recover collateral under a security agreement was not time-barred, because the general six-year statute of limitations did not begin to run until 2013, when the borrower failed to pay the balance due 45 days after the trustee declared a default and gave the borrower notice of his opportunity to cure, as opposed to 2008, when the trustee sent a letter which simply stated that no payment had been made under the promissory note, laid out the amounts currently due at that time, and offered to restructure the debt. Besaw v. Giroux, 2018 VT 138, 209 Vt. 388, 205 A.3d 518, 2018 Vt. LEXIS 236 (2018).

In action on promissory note executed in Florida more than six years prior to bringing of suit, on which the printed word “seal” appeared after signature, statute was well pleaded on plaintiff’s exception to overruling of demurrer. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Determination that suit on note was barred by statute in Vermont did not affect its validity as outstanding obligation or its enforceability in any other jurisdiction. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Guaranty that note, payable at a future day, “is due and that the maker has nothing to file against it,” was to be considered as referring to time when note arrived at maturity, and statute did not commence running on such guaranty until note became due. Adams v. Clarke, 14 Vt. 9, 1842 Vt. LEXIS 1 (1842).

Promise to pay certain notes, signed by promisee and another, was broken when notes became payable, and statute then began to run. Crofoot v. Moore, 4 Vt. 204, 1831 Vt. LEXIS 73 (1831).

Where charter of insurance company provided that directors might, in default of payment of any assessment on premium note, sue for and recover whole amount of such note, statute began to run against whole note from time when an assessment became due. Lycoming Fire Ins. Co. v. Batcheller, 62 Vt. 148, 19 A. 982, 1890 Vt. LEXIS 84 (1890).

Where decedent accepted provisions of his wife’s will, which gave him for life interest on certain notes held by her against him, since notes were not collectible by wife’s executor during the husband’s life, operation of statute was suspended during that period. Church’s Ex’r v. Church’s Est., 80 Vt. 228, 67 A. 549 (1907), same case 78 Vt. 360, 63 A. 228.

Demand, necessity for, see note 5 under this section.

Recovery of insurance proceeds.

In suit by insurance company to recover proceeds paid out when insured barn burned, limitations period began to run on date when insurer paid proceeds. Stankiewicz v. Estate of LaRose, 151 Vt. 453, 561 A.2d 400, 1989 Vt. LEXIS 80 (1989).

Securities fraud.

Since the Vermont Securities Act, 9 V.S.A. § 4201 et seq., is no more akin than the Vermont common law on fraud to federal securities fraud law (Rule 10b-5 of the Securities and Exchange Commission Rules), where federal law provided that the State statutes of limitation best effectuating the policies of the federal statute were to govern a federal action, court would not depart from the settled rule that the statute of limitations for common law (this section) applied. Bartels v. Algonquin Properties, Ltd., 471 F. Supp. 1132, 1979 U.S. Dist. LEXIS 13555 (D. Vt. 1979), disapproved, Ceres Partners v. GEL Assoc., 918 F.2d 349, 1990 U.S. App. LEXIS 19741 (2d Cir. 1990).

Sheriff’s recognizance.

In action of scire facias upon official recognizance of sheriff and his sureties, period of limitation was six years after cause of action accrued. Brainerd v. Stewart, 33 Vt. 402, 1860 Vt. LEXIS 114 (1860).

Strict products liability.

Since all prior forms of action are abolished and there is only one “civil action” in this jurisdiction, it is not necessary to categorize an action based on strict products liability as either tortious or contractual for the purpose of determining which statute of limitations is applicable. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677, 1976 Vt. LEXIS 731 (1976).

Support contracts.

Where son had no right of action by terms of contract to enforce payment for support of his stepmother during his father’s life, administrator of latter’s estate could not rely upon statute as bar to any part of son’s claim on account of lapse of time before father’s death. Sprague v. Sprague's Est., 30 Vt. 483, 1858 Vt. LEXIS 59 (1858).

—Generally.

Six-year limitations period for this section governs cause of action against auctioneer for fraudulently conducted auction. King v. Federal Deposit Insurance Corp., 785 F. Supp. 58, 1992 U.S. Dist. LEXIS 3081 (D. Vt. 1992).

Trial court correctly applied statute of limitation contained in this section to federal action brought by union for failure to provide workers with notice of impending lay-offs; this section was applicable to wrongful discharge actions, and contract limitation period contained in this section best approximated legislative intent of governing federal act. United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 1993 U.S. App. LEXIS 18608 (2d Cir. 1993).

Where there was continuous injury without fresh violence, statute could bar only back of six years from bringing of suit. Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 87 A. 349, 1913 Vt. LEXIS 162 (1913).

Where sheriff made irregular levy of execution on real estate so that no title passed to creditor, cause of action was complete on his failure to make proper levy and statute commenced running from that time. Hall v. Tomlinson, 5 Vt. 228, 1833 Vt. LEXIS 32 (1833).

Unjust enrichment.

Because a cause of action for unjust enrichment under the provision of the Restatement (Third) of Restitution and Unjust Enrichment concerning unmarried cohabitants did not accrue until the domestic partnership ended, and the trial court made the unchallenged finding that the relationship between the parties lasted until November 2015, the statute of limitations had not run on plaintiff’s cause of action at the time of the filing of the complaint. McLaren v. Gabel, 2020 VT 8, 211 Vt. 591, 229 A.3d 422, 2020 Vt. LEXIS 11 (2020).

In an unjust enrichment action, the trial court could have found, but did not, that a separation agreement contained a requirement to sequester stock sale proceeds although it was not explicit on this point. The trial court could not substitute for such a finding a disputed assertion of plaintiff’s position, attributing to plaintiff a waiver of any alternative position; therefore, the court could not affirm the trial court’s holding that plaintiff’s action was barred by the statute of limitations. Mueller v. Mueller, 2012 VT 59, 192 Vt. 85, 54 A.3d 168, 2012 Vt. LEXIS 55 (2012).

This section applies to action based on theory of unjust enrichment. Stankiewicz v. Estate of LaRose, 151 Vt. 453, 561 A.2d 400, 1989 Vt. LEXIS 80 (1989).

Use and enjoyment of property.

Claim of total disruption of water supply to claimant’s houses with intent to inconvenience claimant without legal right, resulting in damage to claimant in that he was inconvenienced, harassed, embarrassed, and his reputation impaired, did not involve injury to the person within meaning of three year statute of limitations for injury to the person; rather, claimant alleged a tortious act resulting in an interference with the use and enjoyment of his property, and the general six year statute of limitations for civil cases applied. Alpstetten Association, Inc. v. Kelly, 137 Vt. 508, 408 A.2d 644, 1979 Vt. LEXIS 1066 (1979).

Workers’ compensation.

Any proceeding for workers’ compensation benefits in an action in contract, and as such, the applicable statute of limitations is six years. Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 507 A.2d 952, 1985 Vt. LEXIS 417 (1985).

Proceeding for compensation under Workmen’s Compensation Act was action of contract within the meaning of statute. Norman v. American Woolen Co., 117 Vt. 28, 84 A.2d 125, 1951 Vt. LEXIS 97 (1951); Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920, 1937 Vt. LEXIS 121 (1937).

Proceeding under Workmen’s Compensation Act was barred under this section unless commenced within six years of date of injury by application to Commissioner of Industries for hearing and award under 21 V.S.A. § 663 . Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 191 A. 920, 1937 Vt. LEXIS 121 (1937).

—Generally.

Six-year limitations period for this section governs cause of action against auctioneer for fraudulently conducted auction. King v. Federal Deposit Insurance Corp., 785 F. Supp. 58, 1992 U.S. Dist. LEXIS 3081 (D. Vt. 1992).

Trial court correctly applied statute of limitation contained in this section to federal action brought by union for failure to provide workers with notice of impending lay-offs; this section was applicable to wrongful discharge actions, and contract limitation period contained in this section best approximated legislative intent of governing federal act. United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 1993 U.S. App. LEXIS 18608 (2d Cir. 1993).

Where there was continuous injury without fresh violence, statute could bar only back of six years from bringing of suit. Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 87 A. 349, 1913 Vt. LEXIS 162 (1913).

Where sheriff made irregular levy of execution on real estate so that no title passed to creditor, cause of action was complete on his failure to make proper levy and statute commenced running from that time. Hall v. Tomlinson, 5 Vt. 228, 1833 Vt. LEXIS 32 (1833).

Cited.

Cited in Bevins v. King, 143 Vt. 252, 465 A.2d 282, 1983 Vt. LEXIS 508 (1983); West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984); Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985); United States v. Commercial Union Insurance Co., 821 F.2d 164, 1987 U.S. App. LEXIS 7952 (2d Cir. 1987); Maynard v. Travelers Insurance Co., 149 Vt. 158, 540 A.2d 1032, 1987 Vt. LEXIS 608 (1987); Lamoureux v. Chromailoy Farm Systems, Inc., 150 Vt. 156, 549 A.2d 649, 1988 Vt. LEXIS 110 (1988); Graham v. Canadian National Ry., 749 F. Supp. 1300, 1990 U.S. Dist. LEXIS 15121 (D. Vt. 1990); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Rennie v. State, 171 Vt. 584, 762 A.2d 1272, 2000 Vt. LEXIS 311 (2000) (mem.).

Cited.

Cited in Morse v. University of Vermont, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992); Schall v. Gilbert, 169 Vt. 627, 741 A.2d 286, 1999 Vt. LEXIS 236 (1999) (mem.).

Law Reviews —

For note relating to statutes of limitations for architects, see 9 Vt. L. Rev. 101 (1984).

Constitutionality.

On appeal from decision in attorney malpractice case, plaintiff’s State constitutional claims that application of three-year statute of limitations would violate right to a remedy at law and to an open court would not be considered where plaintiff failed to delineate how her rights under these provisions had been violated. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

Generally.

It is the nature of the harm done which determines which limitations provision applies. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Determination of applicable limitation period depends on nature of the harm suffered rather than nature of action brought. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

The nature of the harm done, rather than plaintiff’s characterization of the action, is the determining factor in construing the applicability of this section. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

The applicability of this section is predicated upon the nature of the harm for which recovery is sought and not upon the nature of the action brought. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677, 1976 Vt. LEXIS 731 (1976).

Time of commencement of the action is computed at the date of the complaint. Jacques v. Jacques, 128 Vt. 140, 259 A.2d 779, 1969 Vt. LEXIS 214 (1969).

Taking out of writ is commencement of an action to save statute, if it is delivered for service in season to be served, and is duly served and returned. Kessler v. Emmel, 115 Vt. 54, 50 A.2d 604, 1947 Vt. LEXIS 77 (1947).

Accrual of action.

Trustee was not entitled to reopen bankruptcy case to administer previously undisclosed personal injury claim recovery, based on defective medical device, because debtor’s recovery was not property of estate since it did not accrue under Vermont law prior to petition date, given that debtor was unaware of defect until years after her case was closed, and it was not “sufficiently rooted” in her pre-bankruptcy past. In re Vasquez, 581 B.R. 59, 2018 Bankr. LEXIS 498 (Bankr. D. Vt. 2018).

Claim for custodial interference was timely under Vermont’s three-year limitations period for personal injury actions because even if custodial parent effectively discovered that her former partner had fled with their child in 2009, a reasonable person in her position would not have been on notice that her former partner’s counsel played the role that they did. If the parent’s allegations were assumed to be true, counsels’ deliberate attempts to mislead the courts would also have misled a reasonable person about the cause of the parent’s injury, as well as counsels’ potential liability for those injuries. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

Trial court properly held that plaintiffs’ claims for emotional distress arising out of a polygraph examination were time-barred under the three-year statute of limitations for injuries to the person. Before plaintiffs received an analysis by a different polygraph examiner, they had identified nearly all of the deficiencies that formed the basis of their complaint. Eaton v. Prior, 2012 VT 54, 192 Vt. 249, 58 A.3d 200, 2012 Vt. LEXIS 56 (2012).

In an action by a mother and father, on behalf of themselves and their son, against a high school district, a union, and a State Department of Education, a district court correctly concluded that the mother’s defamation of character claim, brought on behalf of herself, was barred by the three-year statute of limitations under 12 V.S.A. § 512(3) because that claim accrued over three years earlier when the alleged defamatory statements were made. Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 2005 U.S. App. LEXIS 13319 (2d Cir. 2005).

Accrual of a cause of action in defamation may be deferred until the plaintiff discovers or, through the exercise of reasonable care and diligence, should have discovered the nature of the defamatory communication. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 807 A.2d 390, 2002 Vt. LEXIS 148 (2002).

The limitations period for an action for personal injury starts to run when the plaintiff should have discovered (1) the injury, (2) its cause, and (3) the existence of a cause of action. Soutiere v. Betzdearborn, Inc., 189 F. Supp. 2d 183, 2002 U.S. Dist. LEXIS 4538 (D. Vt. 2002).

The statute of limitations did not bar an action claiming that the plaintiffs sustained neurological injury from their use of and exposure to polyacrylamide flocculents in the course of their employment where the plaintiffs did not dispute that they were aware of their injuries more than three years before the commencement of the action, but it did not appear that they knew the cause of their injuries more than three years before the commencement of the action, although they had an unsubstantiated suspicion of the cause. Soutiere v. Betzdearborn, Inc., 189 F. Supp. 2d 183, 2002 U.S. Dist. LEXIS 4538 (D. Vt. 2002).

Plaintiff’s action against bank and administrator of father’s estate for alleged conversion of her assets was filed within limitation period provided by this section, where earliest plaintiff knew or should have known of injury to her property was shortly after her father’s death. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Cause of action against railroad for personal injuries and property damages allegedly resulting from the application of herbicides on right-of-way adjacent to plaintiff’s property during ten-year period prior to date that veterinarian informed plaintiff samples taken from their livestock revealed the presence of herbicides was timely filed within three years of announcement by veterinarian; action accrued upon discovery of reason to believe their injuries could have been caused by herbicides. Graham v. Canadian National Ry., 749 F. Supp. 1300, 1990 U.S. Dist. LEXIS 15121 (D. Vt. 1990).

Cause of action under federal civil rights statute section 1983 in which day care licensee claimed retaliatory revocation of license accrued on date plaintiff relinquished license and withdrew application for registration as day care home pursuant to statements of department of social and rehabilitation services employee stating that plaintiff would never be licensed or registered in the future and her present license could be revoked. Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990), aff'd, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

Amended complaint adding new party.

Amendment of complaint to substitute defendant’s name did not relate back to date on which original complaint was filed against defendant’s father, and trial court properly ruled that plaintiff’s action was barred by statute of limitations, where plaintiff failed to argue or prove that defendant had notice of commencement of original suit, or that he knew or should have known that but for a mistake, action would have been brought against him. Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30, 1993 Vt. LEXIS 87 (1993).

On appeal from dismissal of action on statute of limitations grounds, court rejected plaintiff’s argument that notice within “the period provided by law for commencing the action” in V.R.C.P. 15(c) included the time for completion of service of process, an additional 60 days; rule made no provision for notice during period for service, and plaintiff’s construction of rule would essentially extend statute of limitations beyond that provided by Legislature. Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30, 1993 Vt. LEXIS 87 (1993).

In an action against a new party brought in through amendment to a preexisting complaint, the date of commencement of the action is the date plaintiff files the motion to amend the proposed complaint, irrespective of when the court grants the motion to amend. Children's Store v. Cody Enterprises, Inc., 154 Vt. 634, 580 A.2d 1206, 1990 Vt. LEXIS 159 (1990).

Under procedural rule requiring service within 30 days after filing of a complaint, dismissal for tardy service was not required where service was made to new party within 30 days of court’s granting motion to amend adding new party, notwithstanding that more than 30 days had elapsed since filing of motion to amend, which was date of filing for purposes of statute of limitations. Children's Store v. Cody Enterprises, Inc., 154 Vt. 634, 580 A.2d 1206, 1990 Vt. LEXIS 159 (1990).

Asbestos contamination.

University’s products liability action for property damage due to asbestos contamination accrued not when it discovered asbestos in the building but only when it discovered, or should have discovered, which product contained the asbestos that caused the damage; trial court erred in holding that six-year statute of limitations began to run from the time the product was purchased or installed. University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Breach of warranty.

Where action was brought for breach of express and implied warranties of merchantability and fitness for use arising from contract for sale of dairy cattle; there was privity of contract; the contract involved a bonded cattle dealer and a dairy farmer, both “merchants” within the meaning of the Uniform Commercial Code; and the compensatory damages sought were, under the Uniform Commercial Code, potentially recoverable for such a breach of contract, the cause of action fell squarely within the scope of the Uniform Commercial Code and was governed by 9A V.S.A. § 2-725(1) rather than by this section. Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298, 1981 Vt. LEXIS 542 (1981).

In wrongful death action against an automobile manufacturer, on a breach of warranty claim, this section, and not the Uniform Commercial Code’s statute of limitations for sales contracts (9A V.S.A. § 2-725), supplied the limitation period because there was no contractual privity between the parties and because the claim was primarily tortious in nature. Jugle v. Volkswagen of America, Inc., 975 F. Supp. 576, 1997 U.S. Dist. LEXIS 12142 (D. Vt. 1997).

Damage to personal property.

Landowners’ claim for lost profits stemming from engineering firm’s defective subdivision survey could not be construed as a claim for damage to personal property, and claim was therefore governed by six-year statute of limitations applicable to civil actions generally, rather than three-year statute of limitations governing actions for damage to personal property. Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 752 A.2d 26, 2000 Vt. LEXIS 50 (2000).

Nature of landowners’ claim for costs of defending against related suit was not damage to personal property, but loss of money - specifically, attorney’s fees - due to engineering firm’s failure to properly survey landowners’ real property, and thus three-year statute of limitations governing actions for damage to personal property did not apply. Bull v. Pinkham Engineering Assocs., 170 Vt. 450, 752 A.2d 26, 2000 Vt. LEXIS 50 (2000).

Trial court erred in applying three-year statute of limitations to bar indemnification claims against architects for failed attempt to correct problems in condominium project; action was properly considered as one for damage to real property, not personal property, and therefore general six-year statute of limitations applied. Investment Properties, Inc. v. Lyttle, 169 Vt. 487, 739 A.2d 1222, 1999 Vt. LEXIS 234 (1999).

This section governed claims against bank for breach of duty as bailee and agent, since basis of plaintiff’s claims was that bank’s breach of its duty caused the loss of her property. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Complaint alleging that use of insecticide in barn killed one cow and caused damage to others stated a cause of action for damage to personal property within the meaning of subdivision (5) of this section, notwithstanding plaintiff’s assertion that the complaint sounded in fraud and should be governed by section 511 of this title because he had purchased the insecticide under the representation that it was safe for spraying animals. Stevers v. E. T. & H. K. Ide Co., 148 Vt. 12, 527 A.2d 658, 1987 Vt. LEXIS 445 (1987).

Discrimination.

When a couple claimed that a town and its officials discriminated against them in zoning and permitting decisions on the basis of their sexual orientation, the six-year statute of limitations, rather than the three-year period, was applicable, because the nature of the alleged harms was mixed; the couple claimed the town’s actions harmed their rights to privacy and quiet enjoyment of property, fostered a hostile environment, and caused financial harm in terms of attorney fees and bankruptcy. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Former student’s gender discrimination claims, filed January 5, 2009, under Title IX of the Education Amendments of 1972, 20 U.S.C.S. § 1681, were barred by Vermont’s three-year personal injury statute of limitations, 12 V.S.A. § 512(4) , because a college’s alleged discriminatory actions took place during 2003 and 2004. Brown v. Castleton State College, 663 F. Supp. 2d 392, 2009 U.S. Dist. LEXIS 93776 (D. Vt. 2009).

In action for violations of the Vermont Fair Employment Practices Act prohibiting discrimination against qualified individuals with disabilities, plaintiff’s claim for emotional distress resulting from her loss of employment was governed by the three-year limitation period under this section, while the six-year limitation of 12 V.S.A. § 511 governed her claim for economic loss of income and benefits. Egri v. United States Airways, Inc., 174 Vt. 443, 804 A.2d 766, 2002 Vt. LEXIS 139 (2002).

Federal Rehabilitation Act claim brought against university for failure to accommodate plaintiff’s handicap in connection with master’s degree program was governed by three-year statute of limitations applicable to personal injury actions. Morse v. University of Vermont, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Three year personal injury statute of limitations, rather than six year statute governing civil actions, applied to claims brought under federal and state law alleging discrimination on basis of handicap. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Student’s discrimination on basis of handicap claim against university accrued when she learned that university had terminated her from master’s program, and when university notified her she would not be considered for readmission to program; the fact that university entertained appeals did not toll the running of the statute. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Notwithstanding that university offered handicapped student a time extension to complete her degree work, university’s refusal to grant student her degree when she had completed the requisite course hours and grade point average was not a separate instance of violation of antidiscrimination laws for statute of limitation purposes, but rather was continuing impact of alleged discriminatory act of advising student she had been terminated from her master’s program. Morse v. University of Vermont, 776 F. Supp. 844, 1991 U.S. Dist. LEXIS 16244 (D. Vt. 1991), aff'd in part and rev'd in part, 973 F.2d 122, 1992 U.S. App. LEXIS 19365 (2d Cir. 1992).

Estoppel.

As against the ordinary statute of limitations, the doctrine of estoppel in pais may be applied to prevent a fraudulent or inequitable resort to the statute. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

Use of estoppel in pais to prevent a fraudulent or inequitable resort to a statute of limitations is available not only to equity, but also in an action at law. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

In the absence of either a promise or any misrepresentation or concealment of a fraudulent character, there cannot be an equitable estoppel precluding a defendant from setting up the bar of the statute of limitations, and plaintiff must have exercised reasonable care and diligence. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

Plaintiff suing for recovery of damages to its auto in a collision with an auto driven by defendant was not entitled to have defendant estopped from setting up applicable statute of limitations where plaintiff failed to prove its claim that it refrained from bringing suit within the period of limitations at the request or inducement of defendant’s insurer. Caledonia Sand & Gravel Co. v. Campbell, 128 Vt. 182, 260 A.2d 221, 1969 Vt. LEXIS 222 (1969).

False imprisonment.

Section 517 of this title, requiring actions for recovery of taxes paid under protest to be brought within one year, did not apply to suit for false imprisonment whereby payment of tax was compelled. Taylor v. Coolidge, 64 Vt. 506, 24 A. 656, 1892 Vt. LEXIS 79 (1892).

Law governing.

14 V.S.A. § 1492(a) prescribes a limitation period that is necessarily determinable where facts are known and indisputable; accordingly, a claim for wrongful death must be commenced within two years of the date of decedent’s death, and unlike 12 V.S.A. § 512(4) , which contains a discovery proviso providing that actions for personal injury shall be commenced within three years after the date of the discovery of the injury, the wrongful death statute contains no such discovery rule. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572, 1995 Vt. LEXIS 81 (1995).

Where plaintiff had elective surgery on September 20, 1971, she allegedly discovered injury from the surgery on October 11, 1975, on July 1, 1976, statutory amendment changed this section’s rule that cause of action for personal injury accrued at time of injury to rule that cause of action accrued upon discovery of the injury, and plaintiff commenced suit on April 3, 1978, 1 V.S.A. § 214 , providing that amendment of a statute shall not affect the operation of the statute prior to the effective date of the amendment or affect any right or obligation acquired prior to the effective date of the amendment governed, and the action was barred under rule that statute of limitations begins to run at time of injury. Capron v. Romeyn, 137 Vt. 553, 409 A.2d 565, 1979 Vt. LEXIS 1076 (1979).

Action by Vermont resident against Vermont resident for injuries sustained while plaintiff and defendant were traveling in Quebec in auto driven by defendant was governed by Vermont, not Quebec, statute of limitations. Jacques v. Jacques, 128 Vt. 140, 259 A.2d 779, 1969 Vt. LEXIS 214 (1969).

Malicious prosecution.

Where plaintiff alleged that defendants violated his rights when initiating counterclaim against him and he sought only costs for defense of his counterclaim, as opposed to alleging any emotional or physical harm, his claim fell within statute of limitations under 12 V.S.A. § 511 and not that for injuries to the person under this section. Bentley v. Northshore Development, Inc., 935 F. Supp. 500, 1996 U.S. Dist. LEXIS 12395 (D. Vt. 1996).

Malpractice.

In attorney malpractice case arising from defendant’s allegedly deficient representation in juvenile proceeding in which state sought determination that plaintiff’s child was in need of care and supervision, plaintiff’s claims for damages resulting from mental anguish, emotional distress, and personal humiliation were time-barred by three-year statute of limitations on injuries to the person. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

At trial for attorney malpractice arising out of defendant’s allegedly deficient representation in juvenile proceeding in which state sought determination that child was in need of care and supervision, where defendant asserted valid defense of three-year statute of limitations as to claims of emotional distress and there were no genuine issues of material fact, trial court properly granted defendant summary judgment as to those claims, but reversal and remand was required as to claims of economic loss, which were governed by six-year limitations period. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

Where plaintiff underwent surgery on June 30, 1975, and allegedly discovered injury from the surgery in March of 1976, the original version of subsection (4) of this section, governing limitations of actions involving injuries to persons or property, was in effect at the time the plaintiff’s claim accrued since 1 V.S.A. § 214(b)(4) , governing effect of repeal or amendment, prohibited retroactive application of the 1976 amendment to this subsection, which provided that the cause of action accrued as of date of discovery of injury, and the trial court properly barred the plaintiff’s claim filed on February 27, 1979, more than three years after the date of injury. Stewart v. Darrow, 141 Vt. 248, 448 A.2d 788, 1982 Vt. LEXIS 517 (1982).

Personal injury.

Consumer’s suit against pharmaceutical companies for a failure to warn was timely because it was governed by the three-year limitations period of 12 V.S.A. § 512(4) , rather than the limitations period of 9A V.S.A § 2-725(1), (2), since the consumer sought recovery for bodily injuries sustained allegedly as a result of the companies’ failure to warn of risks from a particular drug. Kellogg v. Wyeth, 762 F. Supp. 2d 694, 2010 U.S. Dist. LEXIS 139841 (D. Vt. 2010).

Regardless of the characterization of a cause of action, claims for damages resulting from mental anguish, emotional distress, and personal humiliation are considered “injuries to the person” for purposes of the statute of limitations. Gettis v. Green Mountain Economic Development Corp., 2005 VT 117, 179 Vt. 117, 892 A.2d 162, 2005 Vt. LEXIS 300 (2005).

In personal injury claims governed by the applicable statute of limitations, the cause of action accrues at the time a plaintiff discovers or reasonably should have discovered the basic elements of a cause of action, including the existence of an injury and its causes. Gettis v. Green Mountain Economic Development Corp., 2005 VT 117, 179 Vt. 117, 892 A.2d 162, 2005 Vt. LEXIS 300 (2005).

Six-year statute of limitations applied to malpractice claim brought by mother against psychologist with whom she contracted in connection with custody dispute; although mother’s claim sought personal injury damages for emotional distress, to which a three-year limitation period would normally apply, some of the damages she sought were for economic losses that did not constitute personal injuries, and thus the six-year limitation period applied. Politi v. Tyler, 170 Vt. 428, 751 A.2d 788, 2000 Vt. LEXIS 40 (2000).

Mother who, along with ex-husband, contracted with psychologist in connection with custody dispute should have reasonably discovered injury from psychologist’s role in dispute on or before date of psychologist’s testimony in favor of ex-husband having custody; mother’s claim against psychologist for intentional infliction of emotional distress therefore accrued on date of psychologist’s testimony, and her claim was accordingly barred by three-year statute of limitations. Politi v. Tyler, 170 Vt. 428, 751 A.2d 788, 2000 Vt. LEXIS 40 (2000).

A claim for damages resulting from emotional distress is “injury to the person” and must be commenced within three years after the cause of action accrues. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

The rule of Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), that is, in applying the provisions of a statute of limitations in a personal injury negligence case, the right of action accrues when the negligent act upon which the action is based took place, is overruled. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Date of accrual in plaintiff’s drug product liability action was the date plaintiff’s cancer, allegedly caused by the drug, was first discovered. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Where auto accident occurred on January 3, 1976, plaintiff filed action on January 4, 1979, this section provided action be commenced within three years after cause of action accrued, rule provided for commencement by filing or by service, another rule provided the day of the event sued upon is not counted and the last day of the three year period is counted, and January 4, 1979, was not a weekend or holiday, denial of defendant’s motion for judgment on the pleadings would be reversed as statute of limitations had expired. Powers v. Chouinard, 138 Vt. 3, 409 A.2d 598, 1979 Vt. LEXIS 1093 (1979).

Where the recovery sought is for injury to the person, sustained through acts or defaults of the manufacturer or supplier in selling a product in a defective condition unreasonably dangerous to the user or consumer, the statute of limitations relating to personal injury actions applies. Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677, 1976 Vt. LEXIS 731 (1976).

Settlement negotiations.

This section applied in action arising from automobile accident, where liability insurer of defendant claiming action was barred by statute of limitations made no misrepresentations, concealments, request that suit be delayed or statement that it would waive statute of limitations during settlement negotiations, and consistently demanded releases, which plaintiff never gave, as a part of the proposed settlement. Perry v. Johnson, 131 Vt. 350, 306 A.2d 680, 1973 Vt. LEXIS 314 (1973).

Slander.

Where plaintiff, in a written submission to her employer’s grievance panel, stated that “her reputation was ruined in 1992 and 1993 by the false statements of... my unit supervisor,” she was admittedly aware of the alleged defamatory statements made more than three years before she filed an action, and therefore her claim with respect to this alleged defamation was time-barred. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 807 A.2d 390, 2002 Vt. LEXIS 148 (2002).

Statute could not avail as a defense to action for slander, as it did not appear to have been pleaded. Bates v. Harrington, 51 Vt. 1, 1878 Vt. LEXIS 110 (1878).

Tolling.

Long arm statute, as amended in 1968 to permit service of process outside the state for personal judgment actions, did not supersede the 1961 amendment to the statute allowing service via the Commissioner of Motor Vehicles. Accordingly, the three-year statute of limitations was tolled when defendant resided out of state for the entire period and had no property in Vermont. Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Sixty-day day period contained in V.R.C.P. 3, governing time for service on defendant, controlled tolling of statute of limitations in diversity personal injury action. Cuocci v. Goetting, 812 F. Supp. 451, 1993 U.S. Dist. LEXIS 1530 (D. Vt. 1993).

Tortious interference claim.

Plaintiff’s complaint that, as a result of tortious interference with contract, she “suffered severe physical and emotional health problems and was forced to resign her position, under duress” was properly characterized as alleging personal injuries, and the fact that some economic losses were also alleged did not alter the underlying nature of her claim so that the three-year statute of limitations governed, and the claim was time barred. Rennie v. State, 171 Vt. 584, 762 A.2d 1272, 2000 Vt. LEXIS 311 (2000) (mem.).

Cited.

Cited in Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 507 A.2d 952, 1985 Vt. LEXIS 417 (1985); United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 1993 U.S. App. LEXIS 18608 (2d Cir. 1993); Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993); Kauffman v. State Farm Mutual Automobile Ins. Co., 857 F. Supp. 23, 1994 U.S. Dist. LEXIS 9544 (D. Vt. 1994); Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662, 1996 U.S. Dist. LEXIS 9455 (D. Vt. 1996); Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354, 1997 Vt. LEXIS 105 (1997); Rodrique v. VALCO Enterprises, Inc., 169 Vt. 539, 726 A.2d 61, 1999 Vt. LEXIS 16 (1999); Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999); Macia v. Microsoft Corp., 152 F. Supp. 2d 535, 2001 U.S. Dist. LEXIS 10382 (D. Vt. 2001); Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, 180 Vt. 25, 904 A.2d 1133, 2006 Vt. LEXIS 135 (2006) (mem.).

Law Reviews —

For note relating to statutes of limitations for architects, see 9 Vt. L. Rev. 101 (1984).

Equitable estoppel.

Doctrine of equitable estoppel did not preclude defendant ski resort from invoking applicable one-year statute of limitations, since injured skier’s attorney acted unreasonably in allowing limitations period to expire without confirming that defendant was willing to waive or extend period while parties continued settlement negotiations; defendant’s insurance adjuster did not have superior knowledge of applicable limitations period, and it was the responsibility of skier’s attorney, not defendant’s adjuster, to be aware of period and ensure that his client’s claims did not expire. Beecher v. Stratton Corp., 170 Vt. 137, 743 A.2d 1093, 1999 Vt. LEXIS 401 (1999).

Equitable tolling.

Statute of limitations governing injured skier’s claims against ski resort was not equitably tolled, as it was not reasonable for skier’s attorney to forego filing suit in hope of a settlement that was never promised by defendant’s insurance adjuster, nor did defendant actively mislead plaintiff or prevent plaintiff in some extraordinary way from filing a timely lawsuit. Beecher v. Stratton Corp., 170 Vt. 137, 743 A.2d 1093, 1999 Vt. LEXIS 401 (1999).

Servicemen.

This section’s limitation period was tolled by Soldiers’ and Sailors’ Civil Relief Act provision suspending the running of such statutes of limitation as this section. Wanner v. Glen Ellen Corporation, 373 F. Supp. 983, 1974 U.S. Dist. LEXIS 9365 (D. Vt. 1974).

Soldiers’ and Sailors’ Civil Relief Act provision tolling state statutes of limitations as to persons in the military service does not apply to the wife of a person in military service where the wife brings suit in her own name to recover derivatively for damages she has incurred as a result of injuries suffered by her husband. Wanner v. Glen Ellen Corporation, 373 F. Supp. 983, 1974 U.S. Dist. LEXIS 9365 (D. Vt. 1974).

Ski tow.

Skier being transported on a mechanical ski tow who is injured through operation of tow is not so participating in sport of skiing as to be subject to this section. Marshall v. Brattleboro, 121 Vt. 417, 160 A.2d 762, 1960 Vt. LEXIS 139 (1960).

Suppliers of equipment.

This section applies to suppliers of allegedly defective ski equipment which causes injury as well as to operators of ski areas. Weiner v. Sherburne Corp., 348 F. Supp. 797, 1972 U.S. Dist. LEXIS 12086 (D. Vt. 1972).

Cited.

Cited in Weiner v. Sherburne Corp., 57 F.R.D. 636, 1972 U.S. Dist. LEXIS 10807 (D. Vt. 1972); Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985); University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989).

Computation of statutory period.

In absence of fraud, breach of duty by public officer, which directly affects rights of another, at once gives latter cause of action, and therefore starts running of statute, even though whole extent of injury may not be discovered until later. Johnson v. Beattie, 88 Vt. 512, 93 A. 250, 1915 Vt. LEXIS 264 (1915).

Failure to return writ of attachment.

Where in an action against a sheriff for default of his deputy it appeared that owing to failure of deputy to return plaintiff’s writ of attachment, another creditor obtained priority over plaintiff, his cause of action arose at time of deputy’s failure seasonably to return the writ, and four-year limitation prescribed by this section then began to run, notwithstanding plaintiff’s damages could not then be determined because of pendency of prior attachment. Johnson v. Beattie, 88 Vt. 512, 93 A. 250, 1915 Vt. LEXIS 264 (1915).

Wrongful seizure.

Where there is a seizure of person’s property on writ against another, statute begins to run from date of seizure. Lyman v. Holmes, 88 Vt. 431, 92 A. 829, 1915 Vt. LEXIS 250 (1915).

Construction.

The term “action” as used in this section applies equally to Department of Motor Vehicles administrative proceedings and court actions. Marsicovetere v. Department of Motor Vehicles, 172 Vt. 562, 772 A.2d 540, 2001 Vt. LEXIS 142 (2001) (mem.).

False imprisonment.

This section did not apply to suit for false imprisonment whereby payment of tax was compelled; such suit was governed by § 512 of this title. Taylor v. Coolidge, 64 Vt. 506, 24 A. 656, 1892 Vt. LEXIS 79 (1892).

Fees.

This section did not apply to what legislature called, and considered to be, a fee, when it passed statute providing for a graduated probate distribution fee imposed upon final probate court decree, and that court later found the fee to be a tax in violation of proportional contribution clause of State Constitution did not make it a tax for purposes of this section. In re Estate of Webb, 136 Vt. 582, 397 A.2d 81, 1978 Vt. LEXIS 675 (1978).

Motor vehicle purchase and use tax.

The one year statute of limitation under this section applies to the purchase and use sales tax refund statute, 32 V.S.A. § 8914 . Marsicovetere v. Department of Motor Vehicles, 172 Vt. 562, 772 A.2d 540, 2001 Vt. LEXIS 142 (2001) (mem.).

Cited.

Cited in West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984); Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990).

Accrual of action.

Date of accrual in plaintiff’s drug product liability action was the date plaintiff’s cancer, allegedly caused by the drug, was first discovered. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Actions barred.

Case brought for damages for alleged wrongful act occurring more than three years before the effective date of this section, which did not allege that the insulin allegedly injected by hospital personnel instead of preoperative medication was a noxious agent under subsection (a), was not within subsection (a). Mauran v. Mary Fletcher Hospital, 318 F. Supp. 297, 1970 U.S. Dist. LEXIS 9833 (D. Vt. 1970).

Application.

Cancer is not, in and of itself, a “noxious agent” under the so-called “latent injury” exception to the medical malpractice statute of limitations because an “agent” was something that acted upon the body, causing a disease or illness such as cancer. Thus, the exception did not apply, and plaintiff’s malpractice action was time-barred. Campbell v. Stafford, 2011 VT 11, 189 Vt. 567, 15 A.3d 126, 2011 Vt. LEXIS 9 (2011) (mem.).

Where allegation in complaint, that drug manufactured by defendants produced cancer after a prolonged latent development period, brought drug product liability action within scope of injuries addressed by subsection (a) of this section, and this section was in effect on the date plaintiff discovered her injury, this section would apply to plaintiff’s action. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Statute of repose.

Where plaintiff alleged that drug manufactured by defendants and ingested by her mother while plaintiff was a fetus, together with puberty and menarche, was a proximate cause of her vaginal cancer, statute of repose in subsection (a) of this section ran from the date of plaintiff’s menarche, the last occurrence to which her injury could be attributed. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Cited.

Cited in University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989); Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989).

Application.

This section does not create a duty to intervene in a fight. State v. Joyce, 139 Vt. 638, 433 A.2d 271, 1981 Vt. LEXIS 533 (1981).

Construction.

Even if Department of Social and Rehabilitation Services (SRS) did not undertake to help plaintiffs, this section provides a private analog for an action against SRS based on its failure to assist child abuse victims as required by law. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Negligence.

Persons providing reasonable assistance under this section are liable for damages in a civil suit if their acts are grossly negligent or they expect to receive remuneration for their services. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Cited.

Cited in Smith v. Day, 148 Vt. 595, 538 A.2d 157, 1987 Vt. LEXIS 578 (1987); Ryder v. Chestnut, 2005 U.S. Dist. LEXIS 28518 (D. Vt. Nov. 4, 2005).

Law Reviews —

Analysis of Duty to Aid Endangered Act, see 7 Vt. L. Rev. 143 (1982).

Action time-barred.

Cancer is not, in and of itself, a “noxious agent” under the so-called “latent injury” exception to the medical malpractice statute of limitations because an “agent” was something that acted upon the body, causing a disease or illness such as cancer. Thus, the exception did not apply, and plaintiff’s malpractice action was time-barred. Campbell v. Stafford, 2011 VT 11, 189 Vt. 567, 15 A.3d 126, 2011 Vt. LEXIS 9 (2011) (mem.).

Common law.

This section codifies the common law discovery rule that a plaintiff’s recovery is not barred by the limitations statute if the plaintiff could not reasonably have discovered the injury within the time period. Ware v. Gifford Memorial Hospital, 664 F. Supp. 169, 1987 U.S. Dist. LEXIS 6660 (D. Vt. 1987).

Construction.

Enactment of seven-year repose period for medical malpractice actions did not bar action which vested prior to the enactment of the statute. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

In medical malpractice actions, the question of when the injury was or reasonably should have been discovered for purposes of statute of limitations is one of fact to be determined by the jury. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Trial court applied incorrect legal standard and thereby invaded province of the jury where it determined in medical malpractice action that discovery of the injury occurred when plaintiff discovered he suffered from a disorder, not when he also discovered the cause of the disorder. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Where plaintiff’s medical malpractice action arose prior to enactment of repose provision of statute of limitations, application of the provision deprived plaintiff of due process because it foreclosed all manner of redressing the violation of his vested rights. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Statute of limitations for medical malpractice begins to run only when plaintiff discovers or reasonably should discover the injury, its cause and the existence of a cause of action. Ware v. Gifford Memorial Hospital, 664 F. Supp. 169, 1987 U.S. Dist. LEXIS 6660 (D. Vt. 1987).

Pleading.

In a medical malpractice action, the allegation in plaintiff’s complaint of failure to obtain informed consent could not be transformed to allege fraudulent concealment so as to toll the statute of limitations. Fercenia v. Guiduli, 2003 VT 50, 175 Vt. 541, 830 A.2d 55, 2003 Vt. LEXIS 95 (2003) (mem.).

Trial court did not abuse its discretion when it allowed physicians to amend their answer on the sixth day of trial so as to affirmatively plead the statute of limitation; record indicated that trial court exercised its discretion carefully and that it thoughtfully considered the policy objectives of the rule, balancing the right of the defendants to present their defense based upon the statute of limitations on its merits, rather than being precluded from doing so because of a procedural technicality, against the right of the plaintiff to be provided with adequate notice of the defense. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Cited.

Cited in Stewart v. Darrow, 141 Vt. 248, 448 A.2d 788, 1982 Vt. LEXIS 517 (1982); Perkins v. Windsor Hospital Corp., 142 Vt. 305, 455 A.2d 810, 1982 Vt. LEXIS 645 (1982); University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 565 A.2d 1354, 1989 Vt. LEXIS 141 (1989); Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

Application.

Plaintiff’s claim against state agency, for failing to prevent foster child from sexually abusing him, fell within category of cases intended to be covered by statute of limitations governing actions based on childhood sexual abuse. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

This section applies to civil actions brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Construction.

Nothing in the statutory language of this section suggests that the Legislature intended to exclude nonperpetrators from the reach of the statute; the use of the word “act” in different contexts in different sentences of the statute does not compel the conclusion that the act complained of must always be the act of sexual abuse itself. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Plaintiff’s allegations of childhood sexual abuse occurring forty years in the past were not subject to dismissal on statute of limitations grounds; Legislature had related limitations provision available as a model when it enacted this section, and it could be inferred that Legislature intentionally omitted the “or reasonably should have been discovered” language from this section, leaving only the notion of actual discovery. Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

Notice.

Court declines to follow decisions holding that a plaintiff alleging sexual abuse is, as a matter of law, on inquiry notice of the potential liability of a defendant based on the knowledge that the perpetrator was a priest in the employ of a church. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Particular cases.

When a former patient alleged that her surgeon had sexually assaulted her under the guise of treating her when she was a teenager, it was error to hold that her suit was time-barred, as a reasonable jury could conclude that even though she suspected that the surgeon had examined her to satisfy his sexual desires rather than treat her hip/groin injury, she did not and could not have reasonably discovered the alleged legal injury until she learned through media reports that the surgeon had been charged with assaulting other women in a similar manner. A reasonable jury could come to such a conclusion by considering the position of trust and authority established by the surgeon as the patient’s longstanding doctor, the fact that the patient was being treated for an injury near an intimate part of her body, and the lack of a response from the patient’s family affirming her vacillating concerns about the surgeon’s methods of examination and treatment. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

Surgeon could not prevail on the grounds that a former patient failed to challenge his statement of undisputed facts insofar as the court had ruled that those statements were insufficient to support the trial court’s summary judgment ruling in favor of the surgeon based on the patient’s alleged acknowledgement of defendant’s wrongful conduct. The patient never conceded that she knew or should have known of the wrongfulness of the surgeon’s conduct, which was the ultimate factual question for the jury to resolve in determining whether the statute of limitations had run. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

By acknowledging, in response to the court’s questioning, that a patient had concerns early on about the appropriateness of her surgeon’s examinations, the patient’s counsel did not concede that the patient had knowledge sufficient to trigger the running of the applicable statute of limitations. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

Defendant was not entitled to summary judgment or judgment as a matter of law under the statute prescribing the limitations period for actions based on childhood sexual abuse. Plaintiff linked his long-term mental health issues to the conduct of defendant’s priest in 2002 or 2004, well after the 1984 cut-off date in the retroactivity provision; while defendant could point to other evidence that might support its view that plaintiff was aware or should have been aware much earlier, at best there was a genuine issue of material fact that precluded grant of summary judgment, and there was a legally sufficient basis for the jury to find for plaintiff on the issue. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Trial court erred in granting plaintiff judgment as a matter of law under the statute prescribing the limitations period for actions based on childhood sexual abuse. A priest’s position in defendant’s diocese, and the evidence that plaintiff knew that the priest had abused others, were sufficient for the jury to find that plaintiff was on inquiry notice from those facts, and to conclude that the time for filing an action against defendant had commenced. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Retroactive effect.

For purposes of retroactivity provision of statute of limitations governing actions based on childhood sexual abuse, a plaintiff’s simple awareness of injury or condition resulting from abuse marks date for determining whether plaintiff’s claim falls within period of retroactive application. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

In action against state agency for negligence in failing to protect plaintiff from sexual abuse, trial court erred in equating date of accrual under applicable statute of limitations with date of discovery that determined whether plaintiff’s claim fell within statute’s retroactivity period. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

Trial court erred in failing to apply retroactivity provision of statute of limitations governing cases of childhood sexual abuse, since it was possible, under facts alleged in case, that it was sometime after July 1, 1984 when plaintiff first discovered that his “injury or condition” was caused by act of sexual abuse, and for court to decide that delayed psychological trauma deriving from childhood sexual assault was not a distinct “injury or condition” would render text of retroactivity provision meaningless. Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

Burden of proof.

Plaintiff had burden of proof to show he came within tolling provision of this section. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

Disability after cause of action accrues.

If disability does not exist at time cause of action accrues, subsequent intervening of disability does not prevent running of statute. Lincoln v. Norton, 36 Vt. 679 (1864); Tracy v. Atherton, 36 Vt. 503 (1864), same case 35 Vt. 52, 171 A.L.R. 1281, 1286.

In an action of trover where statute was pleaded, replication alleging insanity of plaintiff and that plaintiff was under guardianship after the cause of action accrued was insufficient. Lincoln v. Norton, 36 Vt. 679, 1864 Vt. LEXIS 29 (1864).

To save operation of statute of limitations in regard to real estate, disability must exist in heir at the time right or title first descends to him, and hence successive disabilities, though existing in same person, cannot exempt his right from operation of statute. McFarland v. Stone, 17 Vt. 165 (1845), same case 16 Vt. 145.

Imprisonment.

Limitations period was not tolled by appellant’s 2011 incarceration, as it occurred after the cause of action had accrued, or under the fraudulent concealment statute, as the alleged fraud appellant asserted would have occurred years after the cause of action accrued and thus did not prevent him from discovering it. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Insanity.

Statute of limitations was not tolled by plaintiff’s alleged inability to manage her affairs. Whatever psychological distress she might have suffered, the trial court found that the record indisputably showed an intense, prolonged involvement by plaintiff in pursuing her rights which was fundamentally inconsistent with the claim that her psychological condition impaired her ability to protect her legal interests. Eaton v. Prior, 2012 VT 54, 192 Vt. 249, 58 A.3d 200, 2012 Vt. LEXIS 56 (2012).

Trial court applied erroneous legal standard in determining that plaintiff was not “insane” for purposes of tolling the statute of limitations where it made only passing reference to plaintiff’s ability “to make decisions about her life” and instead focused principally on evidence normally associated with the higher standard for criminal insanity, such as the absence of a “major mental illness” or “psychosis.” Fila v. Spruce Mountain Inn, 2005 VT 77, 178 Vt. 323, 885 A.2d 723, 2005 Vt. LEXIS 178 (2005).

This section requires more than a mental impairment affecting solely the lawsuit in issue for the statute of limitations to be tolled by plaintiff’s insanity. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

Since plaintiff could handle every aspect of his life, including business and legal responsibilities, except those connected with his lawsuit, trial court correctly found that plaintiff was not insane within the meaning of this section. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

A person may be insane, within the meaning of this section, when his mental disability makes him unable to manage his business affairs or estate, or to comprehend his legal rights and liabilities. Goode v. State, 150 Vt. 651, 553 A.2d 142, 1988 Vt. LEXIS 174 (1988) (mem.).

Statute would not run against person who is non compos mentis. Chamberlin v. Estey, 55 Vt. 378, 1883 Vt. LEXIS 49 (1883).

Minors.

Because the Dram Shop Act contains its own limitations provision and is not codified in the chapter governing limitation of actions, an action under the Dram Shop Act is “otherwise specially limited” and removed from the operation of the minority tolling provision by the statute stating that provisions of the chapter governing limitation of actions “shall not affect an action otherwise specially limited by law.” Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, 180 Vt. 25, 904 A.2d 1133, 2006 Vt. LEXIS 135 (2006).

Statute of limitations runs against an infant having only color of title to land. Soule v. Barlow, 49 Vt. 329, 1877 Vt. LEXIS 15 (1877).

Cited.

Cited in Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985); Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993); Earle v. State, 170 Vt. 183, 743 A.2d 1101, 1999 Vt. LEXIS 404 (1999).

Absence and residence out of State.

Long arm statute, as amended in 1968 to permit service of process outside the State for personal judgment actions, did not supersede the 1961 amendment to the statute allowing service via the Commissioner of Motor Vehicles. Accordingly, the three-year statute of limitations was tolled when defendant resided out of state for the entire period and had no property in Vermont. Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Where debtor’s absence is coupled with residence out of State it comes within second provision of this section, and fact that he was absent from and resided out of State when the right of action accrued does not take it out of that provision. Bethel Mills, Inc. v. Whitcomb, 116 Vt. 357, 76 A.2d 548, 1950 Vt. LEXIS 164 (1950).

Mere absence from State will not prevent operation of statute while debtor retains residence in it by which process may be served upon him. Hall v. Nasmith, 28 Vt. 791, 1856 Vt. LEXIS 127 (1856); Davis v. Marshall, 37 Vt. 69, 1864 Vt. LEXIS 57 (1864); Rutland Marble Co. v. Bliss, 57 Vt. 23, 1885 Vt. LEXIS 40 (1885).

If debtor has his fixed residence out of State, all of his absences from State are to be deducted from time during which statute would otherwise be running. Hall v. Nasmith, 28 Vt. 791, 1856 Vt. LEXIS 127 (1856).

Burden of proof.

One who sought to avail himself of the statute of limitations was bound to prove that he had known attachable property within State for statutory period, if he had not been for the same period present or resident therein. Burnham v. Courser, 69 Vt. 183, 37 A. 288, 1896 Vt. LEXIS 31 (1896); Rixford v. Miller, Bort & Van Vetchten, 49 Vt. 319, 1877 Vt. LEXIS 13 (1877); Hill v. Bellows, 15 Vt. 727, 1843 Vt. LEXIS 117 (1843).

To avoid the statute of limitations upon the ground that the defendant, while residing without the state, had no known attachable property within the state, the plaintiff must affirmatively show that fact. Batchelder v. Barber, 67 Vt. 254, 31 A. 293, 1894 Vt. LEXIS 44 (1894).

Cause of action accruing in another state.

Statute that tolls a cause of action after its accrual while defendant is out of the State and does not own property in Vermont that can be attached excludes causes of action accruing in other states, so long as the parties to the accruing cause are residents of that state. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

Because plaintiff’s cause of action accrued when the parties were New York residents, the exception provided for in the tolling statute applied to the action. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

Purpose of the exception in the statute that tolls a cause of action after its accrual while defendant is out of the State is to prevent a plaintiff from failing to act when he could have done so in the foreign state. Marine Midland Bank v. Bicknell, 2004 VT 25, 176 Vt. 389, 848 A.2d 1134, 2004 Vt. LEXIS 30 (2004).

Where cause of action accrued in another state and parties thereto resided in such state at the time, statute of limitations applies; provisions of this section not extending to such case. Wetmore's Adm'r v. Karrick, 95 Vt. 318, 115 A. 234, 1921 Vt. LEXIS 218 (1921).

Term “residents” in last clause of this section means persons having such residence in such other state at time of accruing of cause of action that legal service of process could have been made upon them. Trask v. Karrick, 94 Vt. 70, 108 A. 846 (1919), same case 87 Vt. 451, 89 A. 472, 148 A.L.R. 734, 747.

Where parties resided in Massachusetts at time note was executed, but at time of maturity maker had neither abode nor property in that state, this section applied and maker’s absence from this State prevented running of statute. Trask v. Karrick, 94 Vt. 70, 108 A. 846 (1919), same case 87 Vt. 451, 89 A. 472, 148 A.L.R. 734, 747.

Execution, time for issuance.

Rule as to time within which an execution may issue was held not modified by the debtor’s absence from and residence without State and in this respect it is not analogous to statute. Yatter v. Smilie, 72 Vt. 349, 47 A. 1070, 1900 Vt. LEXIS 147 (1900).

Foreign corporations.

Statute does not commence running against foreign corporation until they have attachable property in this State, although, previous to that time, there may be directors and stockholders of such corporation residing in the State. Hall v. Vermont & Mass. R.R., 28 Vt. 401, 1856 Vt. LEXIS 50 (1856).

—Generally.

In order to hold an insurance company liable as garnishee on an indebtedness by reason of its liability on a policy of insurance, a present fixed liability to pay the insured for the loss insured against must be shown; that is it must be shown that the legal obligation is absolute, and not contingent or dependent upon unperformed conditions. Ricker v. Lajoie, 314 F. Supp. 401, 1970 U.S. Dist. LEXIS 11032 (D. Vt. 1970).

Known attachable property within State, in order to keep statute in operation, must be such as would be of substantial benefit to creditor. Munroe v. Potter, 65 Vt. 234, 26 A. 901, 1893 Vt. LEXIS 50 (1893); Wheeler v. Brewer, 20 Vt. 113, 1848 Vt. LEXIS 2 (1848).

In order to entitle absent defendant to claim benefit of statute, on ground that he has had known property within State, defendant’s ownership of property must be notorious to such an extent that it would not escape a reasonable search and inquiry on the part of plaintiff. Wheeler v. Brewer, 20 Vt. 113, 1848 Vt. LEXIS 2 (1848).

Where defendant, at time he removed from State, had legal title to a farm but had never been in actual possession of the land, which had been occupied by his grantor and had continued to stand to his grantor in the grand list, and plaintiff resided in town where land was situated but had no actual knowledge of the defendant’s claim to land, this did not constitute “known property.” Wheeler v. Brewer, 20 Vt. 113, 1848 Vt. LEXIS 2 (1848).

Where debtor had known property which could be attached by common and ordinary process, and creditor might have had knowledge of it by reasonable diligence, statute continued to run although creditor had no actual knowledge of property. Tucker v. Wells, 12 Vt. 240, 1840 Vt. LEXIS 39 (1840).

Partners.

Debt may become barred by statute of limitations as to one member of a partnership in State and not as to those out of state. Spaulding v. Ludlow Woolen Mill, 36 Vt. 150, 1863 Vt. LEXIS 53 (1863).

Residence defined.

Debtor must be considered “to be absent from and reside out of State,” within this section when his domicile within State is so broken up, that it would not be competent to serve process upon him by leaving copy there, and for that purpose there must be some place of abode, which his family exclusively maintains, in his absence, and to which he may be expected soon, or in some convenient time, to return. Hackett v. Kimball, 23 Vt. 275 (1851). But see § 553 of this title and annotations thereunder.

Return to State.

If debtor residing outside State when cause of action accrues comes into State temporarily, with no intention of residing there, creditor not knowing thereof, statute is not thereby set in operation. Davis v. Field, 56 Vt. 426, 1884 Vt. LEXIS 61 (1884); Hill v. Bellows, 15 Vt. 727, 1843 Vt. LEXIS 117 (1843); Mazozon v. Foot, 1 Aik. 282 (Vt. 1826).

If debtor residing out of State when cause of action accrues comes to dwell and reside permanently in state, it is not necessary that creditor have knowledge of this fact to set statute in operation; it is enough if he can acquire such knowledge by exercise of reasonable diligence. Davis v. Field, 56 Vt. 426, 1884 Vt. LEXIS 61 (1884); Mazozon v. Foot, 1 Aik. 282 (Vt. 1826).

Statute will commence running against a person residing out of State, having no known attachable property within it, only from such time as he comes to reside or remain in the State. Russ v. Fay, 29 Vt. 381, 1857 Vt. LEXIS 48 (1857).

Cited.

Cited in Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990); Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Family residing in state.

Under statute (G.S. 63, § 20) time of absence from State of a person as soldier was deducted in computing period of statute of limitations, notwithstanding he had family residing in state during his absence. Cardell v. Carpenter, 42 Vt. 234 (1869), same case 43 Vt. 84.

Military service.

Time spent in military service of United States was held not to be included in the six year period limited by § 511 of this title. Bethel Mills, Inc. v. Whitcomb, 116 Vt. 357, 76 A.2d 548, 1950 Vt. LEXIS 164 (1950).

Retroactive effect.

Act of 1863 (G.S. 63, § 20) was retrospective as well as prospective. Cardell v. Carpenter, 43 Vt. 84 (1870), same case 42 Vt. 234, 16 A.L.R. 1344, 137 A.L.R. 1445.

Burden of proof.

One alleging application of this section has burden of showing it to be applicable and must establish a concealment, a fraudulent intent or design to prevent discovery of facts giving rise to his cause of action, and that defendant had actual knowledge of a fact. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Where plaintiff alleged as an exception to the statute of limitations, the fraudulent concealment of his cause of action under the wrongful death and survival statutes, plaintiff acquired the burden of proving both concealment and a fraudulent design to prevent discovery of facts giving rise to the action. Merrill v. Reville, 135 Vt. 517, 380 A.2d 96, 1977 Vt. LEXIS 669 (1977).

One who claims that statute has not run either because of this section or that a person became constructive trustee against whom statute did not run until facts are known or should have been known must in either case show fraud on part of person charged to toll statute. Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940), same case 110 Vt. 294, 6 A.2d 1, 173 A.L.R. 581, 55 A.L.R.2d 239, 63 Harv. L.Rev. 1221.

Defective construction.

Where architect whose plans called for ceiling insulation with an R-19 thermal resistance was sent by contractor a letter and specification sheet stating contractor planned to use insulation with an R-19 air-conditioning thermal resistance and an R-15 heating thermal resistance, and asking for architect’s advice, and architect replied with notation “R19—ceilings . . . o.k.,” and insulation with a heating purposes thermal resistance of R-15 was installed, architect knew the installed insulation did not comply with his plans, and that knowledge, coupled with his representation to plaintiff owner of the building, that the building was built as it was supposed to be, amounted to fraudulent concealment of plaintiff’s cause of action for breach of contract sufficient to toll statute of limitations under this section. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Where complaint alleging defective construction also charged active concealment of the defective work, and that such work was latent and not apparent to plaintiff in the exercise of reasonable diligence, the issue of fraudulent concealment, tolling six year statute of limitations until the time the discovery of the defects was made, was raised. Standard Pkg. Corp. v. Julian Goodrich Archs., 136 Vt. 376, 392 A.2d 402, 1978 Vt. LEXIS 632 (1978).

Fraudulent concealment.

Limitations period was not tolled by appellant’s 2011 incarceration, as it occurred after the cause of action had accrued, or under the fraudulent concealment statute, as the alleged fraud appellant asserted would have occurred years after the cause of action accrued and thus did not prevent him from discovering it. Jadallah v. Town of Fairfax, 2018 VT 34, 207 Vt. 413, 186 A.3d 1111, 2018 Vt. LEXIS 32 (2018).

Any claim of fraudulent concealment was subsumed within the central preliminary question disputed by the parties, ruled on by the trial court, and to be considered by the jury on remand: when a patient should have known that her surgeon was sexually assaulting her instead of treating her. Clarke v. Abate, 2013 VT 52, 194 Vt. 294, 80 A.3d 578, 2013 Vt. LEXIS 69 (2013).

There was no merit to defendants’ argument that a trustee’s fraudulent concealment of material facts tolled the limitations period on their conflict of interest/self-dealing counterclaim. There was no concealment of the trustee’s ownership, or her status as beneficiary and trustee, or of her desire for ownership of the remainder of the property in question, and those were the material facts to be known. In re Estate of Alden v. Alden, 2011 VT 64, 190 Vt. 401, 35 A.3d 950, 2011 Vt. LEXIS 71 (2011).

Where the claim at issue was an in rem claim for foreclosure of a lien, which was a claim against condominiums purchased by defendants, as opposed to a claim against the defendants, the statute of limitations for the claim was not tolled pursuant to 12 V.S.A. § 555 because that section allows for tolling only with respect to personal, or in personam, actions. Lodge at Bolton Valley Condominium Ass'n v. Hamilton, 2006 VT 41, 180 Vt. 497, 905 A.2d 611, 2006 Vt. LEXIS 94 (2006) (mem.).

Limitations period under dram shop statute was not tolled by this section, since any fraudulent concealment by owner of drinking establishment did not prevent plaintiff from bringing his dram shop claim within the limitations period. Rodrique v. VALCO Enterprises, Inc., 169 Vt. 539, 726 A.2d 61, 1999 Vt. LEXIS 16 (1999) (mem.).

This section was properly applied to toll limitations period in tort action brought against defendants for burning down a barn rented by plaintiffs, from the date of the fire until plaintiffs discovered its cause. Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086, 1989 Vt. LEXIS 243 (1989).

In order to invoke the protection of this section, the fraudulent acts must have occurred at a time to prevent the plaintiff from bringing a personal action. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

In action for breach of express and implied warranties arising from sale of dairy cattle in which plaintiffs also alleged fraudulent misrepresentation as to the condition of the cattle on the part of the defendants, the question of whether the statute of limitations was tolled by the fraudulent concealment of the defendants was a question for the trier of fact, and it was therefore improper, as a matter of law, to grant summary judgment for the defendants on the ground that the action was barred by the statute of limitations. Aube v. O'Brien, 140 Vt. 1, 433 A.2d 298, 1981 Vt. LEXIS 542 (1981).

It was for the jury to determine, in deciding whether plaintiff had been prevented by defendant’s fraudulent concealment of his cause of action from instituting suit under wrongful death and survival statutes, if defendant had actual knowledge of the fact that a contraceptive pill, which was being taken by plaintiff’s wife at the time of her gall bladder operation, caused blood clots and then concealed the fact from the plaintiff. Merrill v. Reville, 135 Vt. 517, 380 A.2d 96, 1977 Vt. LEXIS 669 (1977).

If properly pleaded, fraudulent concealment can vitiate the statutory bar of the limitations defense. South Burlington School District v. Goodrich, 135 Vt. 601, 382 A.2d 220, 1977 Vt. LEXIS 687 (1977).

This section appears merely declaratory of common law, enacted for purpose of removing any doubt to be implied from the decisions. Troy v. American Fidelity Co., 120 Vt. 410, 143 A.2d 469, 1958 Vt. LEXIS 119 (1958).

Although general rule is that fraudulent concealment of cause of action which will postpone running of statute of limitations must consist of some affirmative act, concealment of facts by one whose duty it is to disclose them is deemed to be fraudulent. Troy v. American Fidelity Co., 120 Vt. 410, 143 A.2d 469, 1958 Vt. LEXIS 119 (1958).

Concealment of cause of action that tolls statute must be fraudulent and with design to prevent discovery of facts which give rise to action. Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940), same case 110 Vt. 294, 6 A.2d 1, 173 A.L.R. 581, 55 A.L.R.2d 239, 63 Harv. L.Rev. 1221.

While some material fact must be concealed by positive or affirmative act as distinguished from mere silence, it is immaterial whether concealment precedes, is concurrent with, or subsequent to, beginning of cause of action; and fraud by which concealment is accomplished need not be other than that which constitutes cause of action, if it actually has such effect. Watts v. Mulliken's Est., 95 Vt. 335, 115 A. 150, 1921 Vt. LEXIS 221 (1921).

Effect of original fraud, whether operating to conceal cause of action or not, is controlling factor when defendant does no more than to remain silent, and it is duty of defendant to disclose a breach of trust or confidence, his mere silence, if it conceals facts, is an affirmative act postponing running of statute of limitations. Watts v. Mulliken's Est., 95 Vt. 335, 115 A. 150, 1921 Vt. LEXIS 221 (1921).

Statute does not run against an equity founded upon subsisting trust, nor against an equity founded on fraud, while person against whom equity is claimed keeps fraud concealed from party claiming equity. Payne v. Hathaway, 3 Vt. 212, 1831 Vt. LEXIS 13 (1831).

Knowledge.

The actual knowledge required of a defendant as an element of a fraudulent concealment of a cause of action against defendant which will toll a statute of limitations must be distinguished from the scienter required as an element of the tort of misrepresentation, where haphazard falsehood and intentional passing off of belief for knowledge are of the same effect as conscious misstatement of fact. Alexander v. Gerald E. Morrissey, Inc., 137 Vt. 20, 399 A.2d 503, 1979 Vt. LEXIS 933 (1979).

Parties.

In suit by insurance company to recover proceeds paid out, statute of limitations was not tolled with respect to wife who was not involved in causing fire, during period between destruction of barn by fire and charging of husband with hiring person to set fire, where it was not shown that wife fraudulently concealed facts of fire. Stankiewicz v. Estate of LaRose, 151 Vt. 453, 561 A.2d 400, 1989 Vt. LEXIS 80 (1989).

Pleading.

Where a condominium association first raised its in personam claims against defendants when it filed its first amended complaint on a date sixteen days after the six-year limitations period expired, because its in rem and in personam claims arose from the same transaction, and defendants were on notice of the litigation, the in personam claims related back to the date the initial complaint was filed. Lodge at Bolton Valley Condominium Ass'n v. Hamilton, 2006 VT 41, 180 Vt. 497, 905 A.2d 611, 2006 Vt. LEXIS 94 (2006) (mem.).

Withdrawal of bank account.

Where plaintiff’s bank deposit was wrongfully withdrawn and converted by her brother and she did not discover fact until after his death nine years later, his failure to disclose withdrawal was fraudulent concealment within this section. Watts v. Mulliken's Est., 95 Vt. 335, 115 A. 150, 1921 Vt. LEXIS 221 (1921).

Cited.

Cited in In re Peterson, 93 B.R. 323, 1988 Bankr. LEXIS 2277 (Bankr. D. Vt. 1988).

Law Reviews —

For note relating to statutes of limitations for architects, see 9 Vt. L. Rev. 101 (1984).

Generally.

This section is a true statute of limitations, purpose of which is to make necessary the bringing of an action within a reasonable time and thus prevent fraudulent and stale claims from being brought at a time when witnesses have died or disappeared and documentary evidence has been lost or destroyed. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Statute of limitations provision was a remedial statute intended to avoid harsh common law rule that actions abate on defendant’s death which sometimes shortened limitation period within which a plaintiff might sue, but often lengthened it. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Survival action brought for bodily hurt pursuant to 14 V.S.A. §§ 1452 and 1453 must be brought within two years from date of issuance of letters of administration, and not thereafter. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Periods of limitation provided by 14 V.S.A. § 1492 and this section are not suspended by reason of defendant’s absence from state where substituted service under 12 V.S.A. § 891 is available. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Though period of limitation for bringing an action under § 501 of this title ceases to operate with death of mortgagor by virtue of this section, period limiting right or title of entry under mortgage to fifteen years from time such right of entry accrued continues to operate under § 502 of this title. Cameron v. Bailey, 117 Vt. 158, 86 A.2d 643, 1952 Vt. LEXIS 116 (1952).

When debtor died before statute had run upon his debt, his death at most only suspended operation of statute until two years after grant of letters testamentary or of administration upon his estate. Briggs v. Estate of Thomas, 32 Vt. 176, 1859 Vt. LEXIS 81 (1859).

Applicability.

Statute pertaining to the death of a party applies to causes of action that exist before a decedent’s death—causes that could be brought by him or against him while he was alive. From a plain-language reading of the text, it does not apply to causes of action that accrue after death. Benson v. MVP Health Plan, Inc., 2009 VT 57, 186 Vt. 97, 978 A.2d 33, 2009 Vt. LEXIS 53 (2009).

Statute pertaining to the death of a party applies only “if the cause of action survives”; the legislature’s use of the word “survives” indicates that it intended to craft a statute of limitations for certain survival actions. Survival actions are generally understood to be lawsuits on behalf of a decedent’s estate for injuries or damages incurred by the deceased before dying, and do not include causes of action accruing to an estate after a decedent’s death. Benson v. MVP Health Plan, Inc., 2009 VT 57, 186 Vt. 97, 978 A.2d 33, 2009 Vt. LEXIS 53 (2009).

Plain language of the statute pertaining to the death of a party establishes a limitations period only for causes of action that could have been brought by or against the deceased during his lifetime and does not apply to causes of action by or against an estate that accrue after the decedent’s death. Accordingly, the trial court erred in concluding that an administrator’s claim against an insurer that accrued after the decedent’s death was barred by the statute. Benson v. MVP Health Plan, Inc., 2009 VT 57, 186 Vt. 97, 978 A.2d 33, 2009 Vt. LEXIS 53 (2009).

Commencement of limitations period.

Period of limitations for bringing action against Vermont resident on behalf of decedent began to run when executor of decedent’s estate was appointed in New York, rather than at time of issuance of ancillary letters testamentary by Vermont court; to construe subsection (a) of this section otherwise would mean allowing the commencement of the period of limitations to be determined by plaintiff. Estate of Harris v. Eichel, 152 Vt. 180, 565 A.2d 1281, 1988 Vt. LEXIS 245 (1988).

Death in another state.

Person having died in another state, place of his residence, leaving a portion of his estate there and portion in the state, claims could be prosecuted against portion here the same as though sole administration of the estate was in this state, and in such case running of statute of limitations was suspended, as in other cases, during time between death of party and appointment of administrator here. Hicks v. Clark, 41 Vt. 183, 1868 Vt. LEXIS 98 (1868).

Notice.

In dispute over whether tort action was timely brought, this section did not deny plaintiff due process of law by not providing actual notice to tort claimants of triggering of two-year limitations period, where diligent plaintiffs would not fail to discover a potential defendant’s death during the statute’s time limit, and the state’s interest in preventing stale claims was too great. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

For purposes of due process requirements, degree of state involvement in particular limitation of actions statutory provision is sufficient to constitute “state action” where probate court issues letters testamentary or letters of administration after notice by publication and hearing, there is no notice of this action by the court or by the executor or administrator, and the legal proceedings trigger the time bar so that the statute is not self-executing. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Pleading.

Although defendant included “[s]tatute of [l]imitations” in a list of seven “affirmative defenses” set forth in his answer, the statute he relies upon on appeal, the two-year statute of limitations for survival actions, was never asserted below and the bare assertion of an intention to raise the statute of limitations is insufficient to preserve the defense where defendant failed to identify either the statute of limitations upon which he relied or the count to which it applied. In re Estate of Peters, 171 Vt. 381, 765 A.2d 468, 2000 Vt. LEXIS 299 (2000).

Where promise of deceased person was declared upon, plea that cause of action did not accrue within six years before commencement of the suit was insufficient. Smith v. Purmort's Adm'rs, 63 Vt. 378, 20 A. 928, 1891 Vt. LEXIS 118 (1891).

Where plaintiff declared in common counts, and afterwards new assigned, setting up contract and a breach thereof within six years and thirty days prior to death of deceased, and defendant pleaded non accrevit within such six years and thirty days, to which plea plaintiff demurred, demurrer should be overruled; and statute of limitations was good defense to contract set out in the new assignment, and by demurrer plaintiff admitted that facts stated in plea existed. Putnam v. Ward's Adm'r, 61 Vt. 42, 17 A. 740, 1888 Vt. LEXIS 107 (1888).

Timeliness.

Where a plaintiff was appointed trustee of an estate under 14 V.S.A. § 2306 in 1980 and vested with the power to prosecute the rights of the decedent but was not appointed administratrix of the estate until 1992, plaintiff’s survival claims were timely filed within the applicable two year statute of limitation prescribed by the governing section, 12 V.S.A. § 557(a) . Leo v. Hillman, 164 Vt. 94, 665 A.2d 572, 1995 Vt. LEXIS 81 (1995).

Wrongful death actions.

This section’s provision that if one by or against whom an action may be brought dies before expiration of time within which such action may be commenced, then the period of limitation as to such action shall cease to operate at the date of death, and after issuance of letters testamentary or of administration the action, if the cause of action survives, may be commenced within two years, does not apply to a wrongful death action. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866, 1980 Vt. LEXIS 1376 (1980).

Generally.

Presenting of claim to commissioners was beginning of new suit within this section and would avoid effect of statute of limitations if made within one year from time when former suit was discontinued by appointment of such commissioners. Walker v. Wooster's Adm'r, 61 Vt. 403, 17 A. 792, 1889 Vt. LEXIS 56 (1889).

Where action failed on account of neglect of magistrate to appear with writ at time and place of trial, and plaintiff brought another action within year, statute of limitations would not be a bar to the suit. Spear v. Curtis, 40 Vt. 59, 1867 Vt. LEXIS 61 (1867).

Where plaintiff brought suit before justice of peace, who once continued cause, and was absent at second time appointed, by which suit was necessarily discontinued, he could bring another suit within one year after such discontinuance, and statute of limitations would not be a bar to suit, unless cause of action had become barred before commencement of former action. Phelps v. Wood, 9 Vt. 399, 1837 Vt. LEXIS 58 (1837).

Abatement of writ.

This section is clear as to when a plaintiff has the right to bring a new action for the same cause and is not susceptible of exceptions, conditions or requirements by which its saving provisions would be forfeited. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

Language of this section infers that when writ is abated for any cause there has been an “action commenced” within the meaning of section, otherwise there would be no writ to be abated. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 1178.

It was not enough to allege that former suit was abated for defective service and present suit brought within a year from such abatement, but it must further appear that cause of defective service was within statute. Scott v. School District No. 9, 67 Vt. 150, 31 A. 145, 1894 Vt. LEXIS 29 (1894).

—Generally.

Suit tried on merits, and questions involved, whether of law or fact, finally determined, cannot be said to have failed for matter of form because plaintiff omitted therein to rely on other facts available to him. Johnson v. Wells-Lamson Quarry Co., 103 Vt. 475, 156 A. 681, 1931 Vt. LEXIS 195 (1931).

Defeat because of variance between allegations and proof, or failure to support action by evidence because of an averment that makes some fact material which would otherwise be immaterial was not defeat for “matter of form.” Kent v. Batchelder, 88 Vt. 563, 93 A. 264, 1915 Vt. LEXIS 269 (1915); Poland v. Grand Trunk Ry., 47 Vt. 73, 1874 Vt. LEXIS 81 (1874).

This section does not extend to case where first suit was terminated by nonsuit occasioned by inability of plaintiff, through poverty, to comply seasonably with order that plaintiff furnish additional security for defendant’s costs. Hayes v. Stewart, 23 Vt. 622, 1851 Vt. LEXIS 82 (1851).

Arrest of judgment.

Where judgment of Supreme Court compelled plaintiffs to elect either to amend their declaration and have new trial on terms imposed, or to have judgment arrested, their election to submit to an arrest of judgment was not voluntary, and therefore did not bar new action for the same cause within year. Baker v. Sherman, 77 Vt. 167, 59 A. 167 (1904), same case 71 Vt. 439, 46 A. 57, 75 Vt. 88, 53 A. 330.

Rejoinder, which admitted that suit terminated in an arrest of judgment as set forth in replication to plea of statute of limitations, but alleged that such termination resulted from voluntary action of plaintiff, was a plea of avoidance and did not amount to general denial. Baker v. Sherman, 75 Vt. 88, 53 A. 330 (1902), same case 71 Vt. 439, 46 A. 57, 73 Vt. 26, 50 A. 633, 77 Vt. 167, 59 A. 167.

Construction.

Provisions of this section are remedial and should be liberally construed. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 1178.

Disposition on merits.

This section does not apply to a cause that was previously disposed of on its merits. Kent v. Batchelder, 88 Vt. 563, 93 A. 264, 1915 Vt. LEXIS 269 (1915).

Failure of service.

Where action was dismissed because service was not made within required time after filing of complaint, statutory limitation period for the action passed, and a new complaint was filed, new complaint was not saved by this section, for plaintiff had burden to see that service was made and failed to do so. Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 396 A.2d 1388, 1979 Vt. LEXIS 915 (1979).

Suit is commenced within meaning of this section when writ is issued for purpose of having it served and proceeded with though writ fails of service or sufficient service, provided service fails through unavoidable accident. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 117; Tracy v. Grand Trunk Ry., 76 Vt. 313, 57 A. 104, 1904 Vt. LEXIS 141 (1904).

Writ “fails of sufficient service,” within this section, when there is an utter failure of service. Tracy v. Grand Trunk Ry., 76 Vt. 313, 57 A. 104, 1904 Vt. LEXIS 141 (1904).

Evidence tended to show that failure of service in question resulted from “unavoidable accident” within this section. Tracy v. Grand Trunk Ry., 76 Vt. 313, 57 A. 104, 1904 Vt. LEXIS 141 (1904).

Replication to statute of limitations setting forth that previous suit was seasonably begun, but that writ in such suit was not duly served, should allege that such failure of service was due to unavoidable accident or to fault or neglect of the officer serving the same. Scott v. School District No. 9, 67 Vt. 150, 31 A. 145, 1894 Vt. LEXIS 29 (1894).

Form of action.

Where plaintiff was at law, driven to nonsuit by decision of court that form of action could not be sustained, he could commence another action in one year from the termination of that action before the statute of limitations would run at law. Spear & Carlton v. Newell, 13 Vt. 288, 1841 Vt. LEXIS 61 (1841).

Historical.

This section had its beginning in the distant past, tracing its origin to English limitation act 1623 (21 James I, ch. 16, § 4), and with some additions has been law of this state for more than one hundred fifty years. Hayden v. Caledonia Nat’l Bank, 112 Vt. 491, 28 A.2d 389 (1942), same case 112 Vt. 30, 20 A.2d 675, 142 A.L.R. 1178.

This section has no application to subject of jurisdiction, but is simply a modification of statute of limitations. Goff v. Robinson, 60 Vt. 633, 15 A. 339 (1888), same case 62 Vt. 60, 19 A. 993.

Lack of jurisdiction.

Failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action. Thus, the dismissal of plaintiff’s case for failing to file a certificate of merit was not a dismissal for lack of subject matter jurisdiction, and plaintiff’s claim was not protected by the statute governing a new action after the failure of the original action. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Where first suit dismissed for lack of jurisdiction was brought in federal court the plaintiff may begin a new suit in state court pursuant to this section. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

This section providing that a new action may be begun within a stated time if the first action was brought within the period of limitations and was dismissed on a ground not affecting the merits is applicable to suits dismissed for lack of jurisdiction. Leno v. Meunier, 125 Vt. 30, 209 A.2d 485, 1965 Vt. LEXIS 194 (1965).

Wrong party.

There was a failure “for matter of form”, where action was brought in name of wrong party. Premo v. Lee, 56 Vt. 60, 1884 Vt. LEXIS 54 (1884); Spear v. Braintree, 47 Vt. 729, 1875 Vt. LEXIS 53 (1875).

Cited.

Cited in West v. Village of Morrisville, 728 F.2d 130, 1984 U.S. App. LEXIS 25445 (2d Cir. 1984).

Generally.

New promise will revive right of action whether made before or after statute of limitations has run. Chaffee’s Sons v. Estate of Blanchard, 105 Vt. 389, 165 A. 912 (1933), same case 105 Vt. 442, 168 A. 695; Carlton v. Ludlow Woolen Mill, 27 Vt. 496, 1854 Vt. LEXIS 123 (1854).

Liability arising from an acknowledgment or new promise was as limited as liability under original contract on which it was based, and was effective in avoiding bar of statute only for like length of time. Rowell v. Estate of Lewis, 72 Vt. 163, 47 A. 783, 1900 Vt. LEXIS 107 (1900).

Implied promise.

New promise cannot be implied from payment made to secure the discontinuance of a trustee suit on note, when there is no intention on the part of the payor to make payment on note, though payee without knowledge of payor endorses on note part of money so paid. Terrill v. Deavitt, 73 Vt. 188, 50 A. 801, 1901 Vt. LEXIS 151 (1901).

An acknowledgment, in order to remove bar of statute, must be such that promise to pay can be implied from it. Prescott v. Town of Vershire, 63 Vt. 517, 22 A. 655, 1891 Vt. LEXIS 145 (1891).

—Generally.

“I will pay this note at any time,” endorsed on note and signed and dated by payor, was not waiver of statute of limitations, but was new promise. Rowell v. Estate of Lewis, 72 Vt. 163, 47 A. 783, 1900 Vt. LEXIS 107 (1900).

Letter.

Defendant’s letter, which contained no acknowledgment but rather an indirect denial of any indebtedness, was not a new promise within statute. George v. Vermont Farm Mach. Co., 65 Vt. 287, 26 A. 722, 1893 Vt. LEXIS 55 (1893).

A letter which was an admission of existence of an unsettled account, and an expression of willingness to settle it, unaccompanied by an expression of unwillingness to pay balance that might be found due, took plaintiff’s claim out of statute. Bliss v. Allard, 49 Vt. 350, 1877 Vt. LEXIS 18 (1877).

Retroactive effect.

G.S. 63, § 25, was prospective, and not retrospective, in its action. Richardson v. Cook, 37 Vt. 599, 1865 Vt. LEXIS 36 (1865).

Town auditor’s report.

Report of town auditors to the annual town meeting, stating that certain town order was outstanding and unpaid, was not a sufficient acknowledgment as against the town, although auditor’s report was adopted by it. Prescott v. Town of Vershire, 63 Vt. 517, 22 A. 655, 1891 Vt. LEXIS 145 (1891).

Waiver.

Verbal promise made within six years to pay a debt otherwise barred by statute of limitations was effectual to remove statute bar, if evidence of such verbal promise was not objected to by defendant. Ray v. Rood, 62 Vt. 293, 19 A. 226, 1890 Vt. LEXIS 118 (1890).

In replication to plea of statute wherein was set forth defendant’s promise to waive said statute, it was not necessary to allege that promise was in writing. Green v. Seymour, 59 Vt. 459, 12 A. 206, 1887 Vt. LEXIS 175 (1887).

Mortgage debt.

Payment by mortgagor within fifteen years prevented running of statute as to entire premises, notwithstanding mortgagor, to knowledge of mortgagee, had conveyed a portion of same to a third party, who had been in the exclusive occupancy thereof for more than fifteen years, without making any payment upon or otherwise recognizing mortgage debt. Kendall v. Tracy, 64 Vt. 522, 24 A. 1118, 1892 Vt. LEXIS 81 (1892).

Payment of interest or part of principal of mortgage debt by one of several parties who were interested in an equity of redemption, and who had constructive notice, repelled presumption that mortgage had been paid, and took case out of operation of statute of limitations, not only as to payer, but as to all owners of equity. Hollister v. York, 59 Vt. 1, 9 A. 2, 1886 Vt. LEXIS 28 (1886).

The payment of interest on mortgage debt, by mortgagor, or of any portion of principal, would be sufficient to repel presumption of payment and take case out of operation of statute. Martin v. Bowker, 19 Vt. 526, 1847 Vt. LEXIS 72 (1847).

—Generally.

Mere fact that note bears an indorsement of payment thereon, without any evidence tending to show to whom, or by whom, the payment was made, or who wrote indorsement, is not sufficient to prevent running of the statute of limitations. Crahan v. Chittenden, 82 Vt. 410, 74 A. 86, 1909 Vt. LEXIS 306 (1909); Cleveland v. Dinsmore, 59 Vt. 436, 8 A. 279, 1887 Vt. LEXIS 107 (1887).

Indorsement on promissory note, “Paid on this note, March 11, 1882, ten dollars,” signed by maker, was sufficient written acknowledgment to interrupt running of statute, although no payment was in fact made. Gay's Est. v. Hassom, 64 Vt. 495, 24 A. 715, 1892 Vt. LEXIS 77 (1892).

Indorsement upon note, though not in handwriting of payor, was some, but not sufficient evidence of payment, and could be weighed in determining whether payment in fact had been made. Lawrence v. Graves' Est., 60 Vt. 657, 15 A. 342, 1888 Vt. LEXIS 197 (1888); Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881).

Language used in this section implies that such indorsement may be weighed in determining whether payment has been made on note, though not of itself sufficient to establish payment. Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881)(1881).

It is intended thereby to cut off establishment of payment from indorsement alone, unless proved to be made in handwriting of party making payment. Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881)(1881).

Its weight, as evidence, depends upon fact, whether it was made long before, or after, statute had run on note; whether for, or against, interest of owner of note, to have made it. Bailey v. Danforth, 53 Vt. 504, 1881 Vt. LEXIS 35 (1881)(1881).

Payee.

Indorsements in handwriting of payee without direction, authority, or knowledge of defendant, made as representing items of credit owing by payee to defendant as of dates of such indorsements, where there was unsettled book account between parties as well as another note not in issue and not affected by statute, were not sufficient proof of payment to toll statute. Putnam v. Swain, 102 Vt. 90, 146 A. 6, 1929 Vt. LEXIS 148 (1929).

On issue whether certain payment had been made within statutory period, original note having been stolen, admission of copy of note and indorsements thereon made by payee was proper when received not as independent evidence but rather as memorandum in connection with payee’s testimony respecting payment, statute not excluding such use of an indorsement or memorandum of payment. Bennett v. Delphia, 98 Vt. 492, 129 A. 234, 1925 Vt. LEXIS 155 (1925).

An indorsement on a note, in handwriting of the payee, is some evidence of such payment, though made after statute has run. McDowell v. McDowell's Est., 75 Vt. 401, 56 A. 98, 1903 Vt. LEXIS 148 (1903).

Payment generally.

Voluntary part payment of debt, whether barred by statute or not, if made without protestation of further liability, is recognition of such debt by debtor, from which law not only implies an admission of balance as a subsisting debt, but also promise to pay it which prevents operation of statute. Putnam v. Swain, 102 Vt. 90, 146 A. 6, 1929 Vt. LEXIS 148 (1929); Fletcher v. Brainerd, 75 Vt. 300, 55 A. 608, 1903 Vt. LEXIS 133 (1903); Corliss v. Grow, 58 Vt. 702, 2 A. 388, 1884 Vt. LEXIS 1 (1884).

Payment that will operate to revive a debt barred by statute of limitations must be a voluntary one and made with the intent that it should be applied upon such debt. Austin v. McClure, 60 Vt. 453, 15 A. 161, 1888 Vt. LEXIS 169 (1888).

Payment made by assignee under order of court in proceeding in insolvency would not interrupt the running of the statute of limitations, although United States bankrupt act was in force at time. Benton v. Holland, 58 Vt. 533, 3 A. 322, 1886 Vt. LEXIS 56 (1886).

When surety paid money, which he had received in presence of payee from principal on note, it was question of intent, in its effect on statute of limitations, whether he paid it as agent of principal, or for himself, and if it was understanding of all parties that surety was acting for himself, it was payment by him, and removed statute bar as to him. Green v. Morris, 58 Vt. 35, 4 A. 561, 1886 Vt. LEXIS 88 (1886).

—Generally.

When debtor makes payment to one who holds several demands against him without specifying on which debt it is to be applied, creditor may generally apply it on whichever he chooses. Putnam v. Swain, 102 Vt. 90, 146 A. 6, 1929 Vt. LEXIS 148 (1929); McDowell v. McDowell's Est., 75 Vt. 401, 56 A. 98, 1903 Vt. LEXIS 148 (1903).

Where debtor furnished to one or two partners an article for his own use, which was credited upon partnership debt by the other partner at direction of first, given in presence of debtor and without objection on his part, it would operate as payment upon partnership indebtedness within statute of limitations. Cuthbertson v. Hill, 65 Vt. 573, 27 A. 71, 1893 Vt. LEXIS 95 (1893).

Payments not made upon general account, but to apply upon specific items, do not prevent operation of statute of limitations. Hicks' Est. v. Blanchard, 60 Vt. 673, 15 A. 401, 1888 Vt. LEXIS 200 (1888); Harris v. Howard, 56 Vt. 695, 1884 Vt. LEXIS 121 (1884).

Where one owed another an individual and a partnership account, and made general payments, without any application, without protestation against further liability, and payments amounted to more than individual account, law upon principles of equity would apply balance on partnership account, which would remove bar of statute of limitations, although creditor, without definite knowledge of standing of two accounts, gave debtor credit for all payments on his individual account. Robie v. Briggs, 59 Vt. 443, 9 A. 593, 1887 Vt. LEXIS 127 (1887).

Common law.

This section changed common law rule and is limitation of common law right of one joint contractor to act as agent of other joint contractors in making payment on common debt so as to postpone running of statute of limitations as to them all. Bailey v. Corliss, 51 Vt. 366 (1879); Carlton v. Ludlow Woolen Mill, 27 Vt. 496 (1855), same case 28 Vt. 504.

Construction.

This section refers to parties who have incurred personal liability, and has no reference to a right of entry upon real estate. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

—Generally.

Where assumpsit against one of three makers of joint and several promissory note, it appeared that defendant paid plaintiff thereon $ 50 that another of makers had sent to him with a request that he so pay it, and that defendant told plaintiff when he paid it whom it was from, and request with which he received it, payment was in legal effect payment by him who sent the money to defendant, and not such payment as would remove bar of statute as to defendant. Bailey v. Corliss, 51 Vt. 366, 1879 Vt. LEXIS 92 (1879).

Partnership debt and funds.

Payment by one of several makers of joint and several promissory note who were in fact partners when they signed note, will take it out of statute of limitations as to others, if note be a partnership debt, and payment made out of partnership funds. Mix v. Shattuck, 50 Vt. 421 (1878); Carlton v. Mill, 28 Vt. 504 (1856), same case 27 Vt. 496.

Payments made by treasurer of partnership from partnership funds, and by him indorsed on partnership note took note out of statute of limitations, in absence of any showing that he acted without authority and without duty. Walker v. Wait, 50 Vt. 668, 1878 Vt. LEXIS 33 (1878).

Sureties.

Where defendants executed mortgage to secure payment of note executed by others to whom consideration was paid, payments upon note, whether of principal or interest, by makers, without participation of sureties, while serving to keep note alive as against former, would not affect running of time as against latter. Fowler v. Barlow, 102 Vt. 99, 146 A. 77, 1929 Vt. LEXIS 150 (1929).

Interest.

Clerk of county court could sign writ returnable to that court in case where he was stockholder in corporation which was party to the suit. Insurance Co. v. Cummings, 11 Vt. 503, 1839 Vt. LEXIS 113 (1839).

Fact that writ returnable to county court was signed by justice of peace, who was interested in event of suit, was no ground of abatement. Graham v. Todd, 9 Vt. 166, 1837 Vt. LEXIS 15 (1837).

Justice of county.

“Justice of the county,” one of officials authorized to sign writs returnable to municipal court, is justice of peace for county wherein writ is returnable. Anderson v. Souliere, 103 Vt. 10, 151 A. 509, 1930 Vt. LEXIS 105 (1930).

Signature by attorney.

The signing of a writ by the attorney for the plaintiff is not a judicial act. Harrington v. Gaye, 124 Vt. 164, 200 A.2d 262, 1964 Vt. LEXIS 76 (1964).

Sufficiency of signature.

Where process is signed by one who has full authority to set legal procedure in motion and defendant is furnished all security for cost of prosecution to which he is entitled, mistaken identification of signer did not divest him of authority nor deprive process of legal effect. Jones v. Lavanway, 123 Vt. 284, 187 A.2d 346, 1963 Vt. LEXIS 115 (1963).

Signature of authority issuing writ merely to minute of recognizance at foot of writ was not sufficient signature of writ. Andrus v. Carroll, 35 Vt. 102, 1862 Vt. LEXIS 7 (1862).

—Generally.

Provision that writs returnable in municipal court may be signed by certain specified officers, means that writs must be so signed. Anderson v. Souliere, 103 Vt. 10, 151 A. 509, 1930 Vt. LEXIS 105 (1930).

Sunday acts.

The issuance of a summons is a ministerial, rather than a judicial act, and not invalidated by reason of the fact that it is issued on Sunday. Harrington v. Gaye, 124 Vt. 164, 200 A.2d 262, 1964 Vt. LEXIS 76 (1964).

The signing of a writ is a ministerial act and such act on a Sunday is lawful. Harrington v. Gaye, 124 Vt. 164, 200 A.2d 262, 1964 Vt. LEXIS 76 (1964).

Defenses.

In action against constable for neglect to return execution against sheriff, instructions of plaintiff’s attorney to constable were within his authority as attorney to give, and were sufficient to exonerate constable from liability for not returning the execution. Willard v. Goodrich, 31 Vt. 597, 1859 Vt. LEXIS 28 (1859).

Levy.

Where a judgment creditor informs the levying officer of existence and location of assets known to the creditor and gives the officer no further instructions, the officer must levy upon those assets or upon others; but where creditor gives officer specific instructions as to manner of levy and items to be seized, the officer must follow those directions when they are not in conflict with the law, and he is not bound to serve the writ in any other manner and ceases to be a public officer and becomes a private agent. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where law enforcement officer received writ of execution and letter stating writ should be served at named person’s restaurant and if he refused to pay the writ should be satisfied from the receipts in the cash register of the restaurant, the officer had only a duty to levy pursuant to the letter and court trying action against officer for failure and refusal to satisfy the writ erroneously found that officer had duty to levy against such goods, chattels and lands of debtor as he could find or levy upon the cash in the cash register. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where plaintiff instructed defendant constable to levy against cash register receipts should person against whom execution was directed refuse to pay, plaintiff was not, in action claiming constable refused and failed to levy, entitled to mandamus commanding constable to levy against the goods, chattels and lands of the person named in the execution, or against cash register receipts, as plaintiff had limited the duty of constable by limiting the levy instructions. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where person granted writ of execution gives constable the writ and specific instructions concerning the levy and what to levy upon, person granted the writ has the burden of proving constable was not influenced by the instructions where he claims failure or refusal to levy, and absent such a showing the constable is fully exonerated unless dereliction in performance of duty imposed by the limiting instructions is shown. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Where plaintiff claiming failure and refusal to levy execution directed a levy upon cash register receipts should person levied against fail to pay, and in action against constable plaintiff failed to show there existed money in the cash register which belonged to person named in the writ and which could be levied against, constable could not be found in breach of his duty and mandamus would not be issued ordering him to serve the execution, nor was plaintiff entitled to damages. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Mandamus.

Where mandamus mandated that sheriff “and/or” constable serve writ of execution it was not specifically mandated, but directed to two persons in the alternative, and was not a clear order to a specific person and was in error. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Pleading and proof.

Where, in action against constable for neglecting and refusing to serve writ placed in his hands for service, proof was that plaintiff’s attorney went to defendant and “handed out” writ, saying he wanted it served immediately, but that defendant did not take it, but said he had other business to attend to, and could not serve it then, gravamen of declaration was defendant’s refusal to perform his duty by serving writ, and there was therefore no variance. Patten v. Sowles, 51 Vt. 388, 1878 Vt. LEXIS 168 (1878).

—Generally.

When constable, having writ of attachment for service, took receipt for attachable personal property in possession of debtor, it constituted sufficient attachment of property to hold receiptor, and if constable neglected to make proper return of attachment upon writ, he was liable in an action on the case for neglect. Howes v. Spicer, 23 Vt. 508, 1851 Vt. LEXIS 59 (1851).

Where constable, not being misled by any instructions from plaintiff or his attorney, represented to plaintiff that he had made valid attachment, and thereby induced plaintiff to rely upon it and forego making any further attachment, constable was bound by such representation and was estopped from showing that in fact he made no legal attachment. Howes v. Spicer, 23 Vt. 508, 1851 Vt. LEXIS 59 (1851).

Liability of constable was not affected by fact that creditor refused to receive receipt taken by the constable, and prosecute it at his own risk. Howes v. Spicer, 23 Vt. 508, 1851 Vt. LEXIS 59 (1851).

Cited.

Cited in State v. Hart, 149 Vt. 104, 539 A.2d 551, 1987 Vt. LEXIS 590 (1987).

Construction.

Term “writ,” as used in this section, includes writ of execution, as well as writ of attachment. Bank of Rutland v. Parsons, 21 Vt. 199, 1849 Vt. LEXIS 18 (1849).

Guardian of plaintiff.

Officer had no authority to complete service of writ after he was appointed guardian of plaintiff in writ, although he had commenced service before his appointment; nor could another officer complete such service by making different attachment; and defect was not waived by defendant’s appearing and pleading to merits. Clark v. Patterson, 58 Vt. 676, 5 A. 564, 1886 Vt. LEXIS 124 (1886).

Liability for false imprisonment.

If process conforms in kind to that which the court has jurisdiction to issue, officer’s liability for false imprisonment depends on whether there is a defect discoverable by an examination of the process itself; process which is not absolutely void on its face provides sufficient justification for the officer who serves it; if there is a defect apparent on its face which renders the process void, the officer is liable for an arrest made pursuant to such process. Horton v. Chamberlain, 152 Vt. 351, 566 A.2d 953, 1989 Vt. LEXIS 182 (1989).

Service.

When no special instructions as to service of writ or execution are given, it is duty of officer to serve writ according to its precept. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937); Hill v. Pratt, 29 Vt. 119, 1856 Vt. LEXIS 152 (1856).

It is his duty to attach property of debtor if any can be found by exercise of reasonable diligence, respecting ownership of which there is no reasonable doubt. Hill v. Pratt, 29 Vt. 119, 1856 Vt. LEXIS 152 (1856).

Agreement by officer to serve a writ for less than legal fees would not vary his duty in this respect, and in an action against him for neglecting to attach property, testimony showing such an agreement was inadmissible. Hill v. Pratt, 29 Vt. 119, 1856 Vt. LEXIS 152 (1856).

Sheriff cannot excuse himself from service of process because it is erroneous or irregular, but only when it is absolutely void. Stoddard v. Tarbell, 20 Vt. 321, 1848 Vt. LEXIS 39 (1848).

Writ which has once been legally served, and which has then been altered by inserting different date and return day without the consent of defendant therein was not thereby rendered void, so as to excuse officer who served it originally from again making service of it, when delivered to him for that purpose subsequent to alteration. Stoddard v. Tarbell, 20 Vt. 321, 1848 Vt. LEXIS 39 (1848).

An execution issued on judgment, after year and day, was not void, but voidable, merely, and sheriff was bound to execute it, and in an action against him for an escape, irregularity was no defense. Fletcher v. Mott, 1 Aik. 339 (Vt. 1826).

—Generally.

To make “return according to law” is not only to return precept to authority that issued it, but also to return with it statement by officer of his doings in executing it, and that statement must recite substantially all of his doings within scope of proper execution of the process, and must show that he has faithfully obeyed every lawful command of process and of statute, otherwise return will be “undue,” and insufficient for his protection. Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 1905 Vt. LEXIS 90 (1905).

Return of an officer on justice writ issued as capias: “I served this writ by arresting the body of the within named defendant, Burt Gibson, read the same in his hearing and this my return endorsed hereon,” was insufficient, because it did not show how defendant was disposed of after arrest. Gibson v. Holmes, 78 Vt. 110, 62 A. 11, 1905 Vt. LEXIS 90 (1905).

Special directions.

Party at whose instance writ or execution has issued, or his attorney, has right to give officer directions as to how it shall be executed, and officer is bound to follow such directions when not in conflict with law. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

When party assumes to give special instructions to officer in regard to execution of process in his hands, different from his legal duty, officer ceases to be public officer, as to business so entrusted to him, and becomes private agent. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

When party does not direct or control course of officer to whom writ or execution is given, nor ratify his acts, he is not liable for any wrong committed by officer. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

When creditor in committing an execution to an officer, for collection, gives written instructions, and, on trial of an action against officer for neglect in collecting same, instructions are relied upon by way of defense, it is duty of court to direct jury in regard to legal effect of such instructions. Strongs v. Bradley, 14 Vt. 55 (1842), same case 13 Vt. 9.

If such instructions would in any sense qualify conduct of officer, his acts must be referred to them, unless it be shown by positive proof that he was not influenced thereby. Strongs v. Bradley, 14 Vt. 55 (1842), same case 13 Vt. 9.

Time.

Time when an execution is returned into office of clerk of the court from which it issued was one of the things required to be shown by return itself. Yatter v. Pitkin, 72 Vt. 255, 47 A. 787 (1900), same case 66 Vt. 300, 29 A. 370.

Writ of execution could be executed on day on which it was returnable, and where body of debtor was committed to prison, it was not necessary that execution should be returned to proper office within its life, and no action on the case could be sustained by reason of its not being so returned. Fletchers v. Bradley, 12 Vt. 22, 1840 Vt. LEXIS 4 (1840).

Law Reviews —

Post-judgment executions in Vermont and sheriffs’ liability, see 2 Vt. L. Rev. 117 (1977).

Deputy sheriff.

Provisions of this section apply to deputy sheriff. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

False return.

Plaintiff could maintain action on case for false return where return, headed with name of this State and one of its counties, stated that copy of a petition of foreclosure was left with plaintiff, one of defendants in process, and no place was specified where such process was left with plaintiff, but in fact it was delivered to him by defendant, in state of New Hampshire, and plaintiff did not appear in cause, and decree of foreclosure was taken against him, without any continuance of cause, and short time fixed for redemption, upon expiration of which without payment, tenant of plaintiff, then in possession of premises, was ousted by virtue of decree. Davis v. Richmond, 35 Vt. 419, 1862 Vt. LEXIS 56 (1862).

Neglect.

Where plaintiff claiming failure and refusal to levy execution directed a levy upon cash register receipts should person levied against fail to pay, and in action against constable plaintiff failed to show there existed money in the cash register which belonged to person named in the writ and which could be levied against, constable could not be found in breach of his duty and mandamus would not be issued ordering him to serve the execution, nor was plaintiff entitled to damages. Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588, 1979 Vt. LEXIS 1101 (1979).

Sheriff who received an execution in favor of private corporation of which he was member was not liable for neglecting to levy and return it, and it made no difference that he served original writ, in suit in which execution issued, by attaching property, and took receipt for the property and had prosecuted suit against receiptor to final judgment, which was unsatisfied by reason of insolvency of receiptor. Bank of Rutland v. Parsons, 21 Vt. 199, 1849 Vt. LEXIS 18 (1849).

Blank appointment.

Appointment on blank writ was void, and those acting under it were trespassers. Ross v. Fuller, 12 Vt. 265, 1839 Vt. LEXIS 150 (1839); Kelly v. Paris, 10 Vt. 261, 1838 Vt. LEXIS 51 (1838).

Appointment cannot be left blank, and be filled up by plaintiff afterwards. Ex parte Kellogg, 6 Vt. 509, 1834 Vt. LEXIS 83 (1834).

Delegation or proxy.

Appointment cannot be done by delegation or proxy. Kelly v. Paris, 10 Vt. 261, 1838 Vt. LEXIS 51 (1838).

Infant.

Infant could not be specially authorized to serve writ. Vail v. Rowell, 53 Vt. 109, 1880 Vt. LEXIS 96 (1880); Harvey v. Hall, 22 Vt. 211, 1850 Vt. LEXIS 17 (1850).

—Generally.

Justice form, of authorizing one to serve writ, did not confer sufficient authority to serve county court writ. Washburn v. Hammond, 25 Vt. 648, 1853 Vt. LEXIS 104 (1853).

It was not necessary to validity of authorization of an indifferent person to serve writ returnable to county court, that it should be stated in authorization, that known public officer could not seasonably be had, to serve writ. Culver v. Balch, 23 Vt. 618, 1851 Vt. LEXIS 81 (1851).

Where justice writ directed, in body of it, to an indifferent person, named in form of deputation in county court writ, person so named would not be authorized to serve such writ. Edgerton v. Barrett, 21 Vt. 196 (1849).

Special authorization of person to serve process, indorsed on back of writ, and signed by magistrate issuing it, in these words,—“I authorize A. B. to serve and return this according to law,”—was sufficient, upon plea in abatement, as no uncertainty could exist, as to what was intended by pronoun this. Fullerton v. Briggs, 20 Vt. 542, 1848 Vt. LEXIS 75 (1848).

County court had no power to permit magistrate, who signed writ, to amend direction, after the case had been entered in court, by inserting therein statutory reasons for making the authorization, and affidavit of magistrate, that he omitted requisite matter by mistake, could have no effect. Dolbear v. Hancock, 19 Vt. 388, 1847 Vt. LEXIS 45 (1847).

Bill accompanied by ordinary subpoena, which, however, contained no direction to person delivering copy, was insufficient, and defendant was not affected by it. Bank of Burlington v. Catlin, 11 Vt. 106, 1839 Vt. LEXIS 23 (1839).

Authorization need not mention particularly all such known officers as might legally serve writ if seasonably to be had. Bell v. Chipman, 2 Tyl. 423 (Vt. Feb. 1, 1803).

Judicial act.

Appointment of an indifferent person is a judicial act, which can be exercised only by the authority signing process. St. Johnsbury v. Goodenough, 44 Vt. 662, 1871 Vt. LEXIS 111 (1871); Dolbear v. Hancock, 19 Vt. 388, 1847 Vt. LEXIS 45 (1847); Ingraham v. Leland, 19 Vt. 304, 1847 Vt. LEXIS 31 (1847); Ross v. Fuller, 12 Vt. 265, 1839 Vt. LEXIS 150 (1839).

It requires exercise of judicial discretion in adjudging that precept would fail of service for want of a proper legal officer, and in deciding upon person to serve it, hence authorization by magistrate who was counsel for one of parties would be invalid. St. Johnsbury v. Goodenough, 44 Vt. 662, 1871 Vt. LEXIS 111 (1871).

Motion to dismiss or plea in abatement.

Where total want of authority, in person who undertakes to serve a writ, to make service, appears upon face of process, defect could be taken advantage of upon motion to dismiss or plea in abatement. Howard v. Scott, 39 Vt. 163, 1866 Vt. LEXIS 75 (1866); Washburn v. Hammond, 25 Vt. 648, 1853 Vt. LEXIS 104 (1853).

Name and designation.

Writ directed “to any sheriff or constable in the State or to George Brooks,” without additional words, an indifferent person, would confer no authority upon person named to make service thereof. Brooks v. Farr, 51 Vt. 396, 1878 Vt. LEXIS 170 (1878).

Authorization inserted in direction of county court writ in these words: “To C. H. Harding, an indifferent person, to serve and return,” was sufficient. Bliss v. Smith, 42 Vt. 198, 1869 Vt. LEXIS 64 (1869).

It is necessary to insert in writ name of person and that he is an indifferent person. Culver v. Balch, 23 Vt. 618, 1851 Vt. LEXIS 81 (1851).

Where service was made by an indifferent person not named therein, defendant was not bound to notice it. Spafford v. Spafford, 16 Vt. 511, 1845 Vt. LEXIS 2 (1845); Allyn v. Davis, 10 Vt. 547, 1838 Vt. LEXIS 112 (1838).

Citation directed to any indifferent person will not give proper notice when served by an indifferent person since no person is authorized to serve process of a court unless particularly named in such process. Moffat v. Moffat, 10 Vt. 432, 1838 Vt. LEXIS 81 (1838).

Persons who may be authorized.

Writ would not abate, on ground that service was made by son-in-law of the plaintiff, under special direction given him by authority issuing the writ. Miller v. Hayes, Brayt. 21 (1817).

Removal of pauper.

An authorized person could not serve an order of removal of a pauper. Granville v. Hancock, 55 Vt. 323, 1883 Vt. LEXIS 35 (1883).

Subpoena.

Subpoena could be directed to indifferent person to serve. Smith v. Wilbur, 35 Vt. 133, 1862 Vt. LEXIS 12 (1862).

—Generally.

Authority issuing writ of execution may authorize some one specially to serve same, when it is against town. Walter v. Denison, 24 Vt. 551, 1852 Vt. LEXIS 83 (1852).

Purpose.

This section was designed to protect parties to process from unjust exactions by officer for service of process by requiring that he make statement of items of his charges before he is entitled to or allowed same. Harrington v. Hill, 51 Vt. 44, 1878 Vt. LEXIS 116 (1878).

Retention of fees without indorsement.

If officer returned process satisfied, but without a detailed return of his doing thereon, and without an itemized minute of his fees, and retained his fees, execution debtor could recover their amount of him in assumpsit, or creditor of debtor could charge him therewith as trustee. Harrington v. Hill, 51 Vt. 44, 1878 Vt. LEXIS 116 (1878).

Constitutionality.

This section is not in violation of the Fourteenth Amendment to Federal Constitution as taking property without due process of law. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Common law.

At common law, an unincorporated association, as regards its rights and liabilities, is fundamentally large partnership, status of its members is that of partners, and association must sue and be sued in names of its members, however numerous they may be. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Construction and effect.

This section and § 5060 of this title were parts of same act, 1882, No. 71 , and must be construed together. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Statute recognizes as entity separate and distinct from members of partnerships, associations or companies, and individuals in becoming members impliedly contract with reference to provisions of statute and are bound by them. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Federal district court.

Rhode Island partnership could bring suit in its firm name against Vermont corporation in federal district court. Remington Dairy v. Rutland Ry., 15 F.R.D. 488, 1954 U.S. Dist. LEXIS 4298 (D. Vt. 1954), overruled, Universal Steel & Metal Co. (1975), Ltd. v. Railco, Inc., 465 F. Supp. 7, 1978 U.S. Dist. LEXIS 15401 (D. Vt. 1978).

Purpose.

This section was enacted for practical convenience and benefit of partnerships, associations and companies to which it relates, as well as for convenience and benefit of creditors, in bringing and prosecuting suits. F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906).

Law Reviews —

National recovery code assessments, see 44 Yale L.J. 849, 866 (1935).

Constitutionality.

This section expresses a policy to assert jurisdiction over foreign corporations to the fullest extent permitted by the Due Process Clause of the Fourteenth Amendment. Chittenden Trust Co. v. Bianchi, 148 Vt. 140, 530 A.2d 569, 1987 Vt. LEXIS 462 (1987).

This section expresses a policy to assert jurisdiction over foreign corporations to the full extent permitted by the Due Process Clause of the Fourteenth Amendment. Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981).

This section represents a practical attempt to assert jurisdiction in cases where the interests of Vermont residents are affected and is constitutional. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Tort provision of this section is not in conflict with Federal Constitution so far as Due Process Clause of Fourteenth Amendment is concerned. Smyth v. Twin State Imp. Corp., 116 Vt. 569, 80 A.2d 664, 1951 Vt. LEXIS 134 (1951), 34 B.U.L. Rev. 190 (1951).

Generally.

Question whether a Vermont court has jurisdiction over nonresident defendants is one of federal constitutional law requiring court to decide whether defendants have had sufficient minimum contacts with Vermont such that maintenance of suit does not offend traditional notions of fair play and substantial justice, and critical consideration is whether defendants’ conduct and connections with forum state are such that they should reasonably anticipate being haled into court there; it is essential to a finding of personal jurisdiction that a defendant purposefully avails itself of privilege of conducting activities within forum state, thus invoking benefits and protections of its laws. Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999).

Process may be validly served under this section only in an action or proceeding arising out of the contact with or activity in Vermont. Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981).

Federal District Court was bound by State court construction of State’s Long-Arm Statute. Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 1980 U.S. App. LEXIS 14392 (2d Cir. 1980).

Where compliance with the procedural requirements of this section and § 856 of this title involving service of process on foreign corporation by service on Vermont Secretary of State, with forwarding of process and return by registered mail to foreign corporation, were not questioned, reversal of order dismissing complaint for want of jurisdiction was required. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

The vital factor in determining the existence of jurisdiction of the person of the absent foreign corporation is the intentional and affirmative action on the part of the nonresident in pursuit of its corporate purposes within the jurisdiction and a single act, purposefully performed here, will put the actor within the reach of the sovereignty of this State, as will active participation in the Vermont market, either by direct shipment, or by way of transmittal through regular distributors presently serving the Vermont marketing area. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

An essential jurisdictional factor cannot be supplied by speculation. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Appeals.

Service on European corporation could not give the court jurisdiction under substituted service on foreign corporation statute where findings in lower court proceeding allowing the service were completely silent as to activities in Vermont and absent any activity the corporation could not be deemed to be “doing business” in Vermont within the purview of the statute. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Conduct or activity.

Where plaintiff, Vermont corporation, placed order and made payment for goods with Florida corporation, which in turn placed order and made payment for goods with defendant, a Tennessee corporation not registered to do business in Vermont, with manufactured goods in accordance with specifications of Florida corporation and shipped goods under prepaid arrangement with common carrier in Tennessee directly to plaintiff, with title to the goods thus passing in Tennessee, contacts of defendant with Vermont were not sufficient, under tests mandated by Due Process Clause of Fourteenth Amendment, to support assertion of jurisdiction under this section or section 856 of this title. Robinson v. International Industries Limited, Inc., 139 Vt. 444, 430 A.2d 457, 1981 Vt. LEXIS 483 (1981).

Where Vermont corporation phoned foreign corporation in Pennsylvania to make an unsolicited order for goods found defective upon receipt, foreign corporation did not solicit or do any business in the state, and the goods were shipped C.O.D., lower court had jurisdiction over action against foreign corporation by Vermont corporation for damages for defects, and service of process could be had under statute providing for service upon Secretary of State and forwarding of process and return by registered mail to defendant. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

Collection in Vermont of the purchase price for goods sold to Vermont corporation by Pennsylvania corporation was a prime element of Pennsylvania corporation’s intent to purposefully avail itself of the privilege of conducting activities within Vermont, thus involving the benefits and prohibitions of Vermont law; by C.O.D. shipment, Pennsylvania corporation, found subject to service of process by service on Vermont Secretary of State, with forwarding of process and return by registered mail to Pennsylvania corporation, made the carrier its agent for delivering the goods and collecting the price. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

Once the requisite contact and activity have been found on the part of foreign corporate defendant the question remains whether the litigation grew out of such contact and activity, and in this regard it was incumbent that the plaintiff demonstrate that the defendant was causally responsible for the presence of the injuring agency within this State. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

Where defendant’s alleged contacts and activities within this jurisdiction, rather than being mere isolated acts which were unrelated to the plaintiff’s causes of action, were integral and necessary acts from which the action arose, the required nexus had been shown between the facts underlying the causes of action and the defendant’s alleged contacts and activities. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

Where shipment and ultimate sale of crawler-dozer in Vermont was direct result of foreign corporation’s deliberate, knowing and purposeful utilization of its in-state distribution system, corporation’s acts demonstrated a clear intention to actively participate in Vermont market and for purposes of wrongful death action arising out of fatal injury to person using vehicle manufactured by the corporation, it engaged in sufficient contact and activity to bring it within purview of this section. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

In suit by resident retired employee against defendant’s employees retirement plan and its corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act, defendants’ contacts and activities in Vermont, consisting at the most of three administrative letters mailed to plaintiff in Vermont, were not sufficient to warrant exercise of personal jurisdiction over defendants by courts of this State, and dismissal of action was required. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that nonresident corporation sold its product in Vermont did not give rise to cause of action by resident plaintiff suing defendant corporation’s employees retirement plan and its nonresident corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act; thus court lacked personal jurisdiction over defendants under this section. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

In order for the long-arm of this section to reach defendant, plaintiff must show that conduct or activity of defendant in Vermont gave rise to the particular cause of action. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that consequences of defendants’ activities have been felt in Vermont, standing alone, is insufficient to sustain personal jurisdiction by Vermont Federal District Court. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Where Virginia residents bought an auto in Connecticut form a Connecticut dealer, and one defendant was a distributor with contacts with Vermont dealers and the other was distributor’s parent corporation, suit for false representations, breach of warranty and negligence was not “action or proceeding against” defendants “arising or growing out of that conduct or activity” carried on in Vermont by defendants as required by this section. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Jurisdiction over co-conspirators.

Counterclaim plaintiffs failed to make sufficient, properly supported proffers of evidence to allow assertion of personal jurisdiction over nonresident corporation, based on its participation in an alleged conspiracy causing tortious injury in Vermont; with few exceptions, counterclaim and affidavits contained only general and conclusory statements regarding conspiracy, and exceptions did not constitute sufficient prima facie showing as to existence of conspiracy involving corporation commencing at relevant time. Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999).

Counterclaim plaintiffs failed to make requisite prima facie showing to assert personal jurisdiction over Illinois-based law firm as a conspirator, where all lawyers’ acts were ostensibly taken for client, and could be fully explained by client’s desire to liquidate his interest in company and avoid liability for company’s debts that he personally guaranteed, and counterclaim plaintiffs also failed to establish jurisdiction over law firm on theory of intentional infliction of emotional distress. Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999).

Knowledge of consequences.

The act by a foreign corporation which will subject it to Vermont’s jurisdiction under this section must be one which the foreign corporation could know to have potential consequences in Vermont. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Minimal contacts.

Defendant’s contacts with Vermont were sufficient to establish long-arm jurisdiction over it, where defendant was in the business of selling heavy equipment to a national market, it reached that market by advertising in a national trade journal, and equipment sale in question arose from contact made as a result of advertisement. Brown v. Cal Dykstra Equipment Co., 169 Vt. 636, 740 A.2d 793, 1999 Vt. LEXIS 246 (1999) (mem.).

Where, by its terms, State service of process upon foreign corporations statute expressed policy to assert jurisdiction to full extent permitted by Due Process Clause of Fourteenth Amendment, issue of whether jurisdiction existed in case at hand was one of federal constitutional law, with basic test being that validity of service depends upon whether defendant has certain minimum contacts with Vermont such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

The extent of participation in the Vermont market that will satisfy the elements of fair play and substantial justice is the essential element for exercise of jurisdiction over a foreign corporation by service on Vermont Secretary of State with forwarding of process and return by registered mail to foreign corporation. Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979).

While service pursuant to State statute is a permissible method of commencing actions in Federal District Courts, out-of-state defendants can be subjected to the reach of this section only in suits growing out of acts which have created essential contacts with the forum state. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

As to both diversity and federal question jurisdiction of Federal District Court, in personam jurisdiction can be obtained over nonresident defendants by substituted service on the Vermont Secretary of State only if defendants had sufficient “minimal contacts” in Vermont. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

When a substituted service action against a foreign corporation is dismissed for insufficient required minimal contacts to establish jurisdiction, the issue of the merits of personal jurisdiction has been decided, not the issue of the merits of the claim, and an assignee of plaintiff’s claim misapprehends the law if he argues he is not bound by the dismissal because it was not on the merits; he can always sue in the state having sufficient contacts. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Where defendant Georgia corporation had subsidiaries and related corporations in Vermont and an airplane under its management and control flew into Vermont and was lost over Lake Champlain a few minutes after takeoff at Burlington, defendant would be deemed to be a foreign corporation doing business in Vermont and the contact and activity would support a personal judgment against it, under this statute, in suit by administrator of a passenger never found and presumed dead. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

Persons who owned Georgia partnership which serviced plane which crashed in Vermont, whose only contact with owner of the plane was through the pilot and co-pilot, whose affidavit refuted the idea they knew or had good reason to know their service would have causative effect in Vermont and who were not told the plane was going to Vermont could not be sued in Vermont. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

In determining whether a state has jurisdiction over the person of an absent foreign corporation, the “certain minimal contacts” which will permit the acquisition of such jurisdiction must afford a “substantial connection” with the state of the forum. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Vermont court is permitted to reach out-of-state defendants only in suits growing out of acts which have created contacts with Vermont, however limited or transient such contacts may be. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Manufacturer of water heaters who shipped them regularly to franchised dealer in Vermont who sold them to Vermont buyers had sufficient contact with Vermont to be subject to jurisdiction in Vermont under this section in suit by person injured by exploding heater. Deveny v. Rheem Manufacturing Company, 319 F.2d 124, 1963 U.S. App. LEXIS 5058 (2d Cir. 1963).

Pleadings.

When a plaintiff seeks to reach a foreign corporate defendant in personam by service under this section, it is incumbent upon the claimant to plead sufficient facts to demonstrate that the defendant is causally responsible for the presence of the injuring agency within this State. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963).

Res judicata.

Judgment dismissing action for lack of personal jurisdiction over foreign corporation bound successor to defendant corporation and assignee of plaintiffs’ claim as they were privies to the parties in the suit. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Where Virginia residents bought an auto in Connecticut and their Vermont suit for false representations, breach of warranty and negligence against Connecticut corporation distributing, as a subsidiary of European manufacturing firm, the auto in the United States and assumed to be doing business in Vermont, was dismissed for insufficient minimal contacts of the defendant with Vermont to establish jurisdiction under the substituted service law, subsequent Vermont action under such substituted service, by assignee of purchasers against successor to defendant in prior suit and against the parent corporation, asserting an identical cause of action, should have been dismissed on res judicata grounds as against the Connecticut corporation. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Cited.

Cited in Messier v. Whitestown Packing Corp., 544 F. Supp. 8, 1982 U.S. Dist. LEXIS 14897 (D. Vt. 1982); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990); Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Law Reviews —

Subsidiary conduct as basis for long-arm jurisdiction over a parent corporation in Vermont, see 3 Vt. L. Rev. 111 (1978).

Constitutionality.

This section and § 892 of this title are a valid exercise of power by a state on the basis that it has the right to regulate the use of its highways. Proulx v. Goulet, 315 F. Supp. 622, 1970 U.S. Dist. LEXIS 10747 (D. Vt. 1970).

Complaint.

Since this section is only applicable to cause of action arising in this State, complaint should set out not only facts which constitute cause of action, but also jurisdictional facts with that degree of certainty which nature of facts pleaded reasonably requires, in order that they may be understood by party who is required to answer; and it is not enough to refer to jurisdictional fact in an uncertain, doubtful or ambiguous manner as a kind of general dragnet to meet whatever situation might arise. Emerson v. Carrier, 119 Vt. 390, 125 A.2d 822, 1956 Vt. LEXIS 121 (1956).

Construction.

Legislature intended by 1951 amendment to make section applicable to persons who absent themselves from State, whether residents or nonresidents. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

While this section must be strictly construed, it must be so construed as to accomplish purpose for which it was intended. Emerson v. Carrier, 119 Vt. 390, 125 A.2d 822, 1956 Vt. LEXIS 121 (1956).

This section provides all procedural safeguards for due process of law. Emerson v. Carrier, 119 Vt. 390, 125 A.2d 822, 1956 Vt. LEXIS 121 (1956).

When defendant is amenable to process under this section, time of his absence from and non-residence in State is not excluded from two-year period provided in 14 V.S.A. § 1492 . Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189, 1947 Vt. LEXIS 81 (1947).

Federal district court jurisdiction.

District Court in Vermont has jurisdiction in suit between nonresidents where accident occurred in Vermont, since appointment of commissioner as agent under this section constitutes consent to venue in this district. Jacobson v. Schuman, 105 F. Supp. 483 (D. Vt. 1952), contra: Olberding v. Illinois C.R.R. (1953) 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 7.

Cited.

Cited in Mintz v. Matalon, 148 Vt. 442, 535 A.2d 783, 1987 Vt. LEXIS 538 (1987); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990).

Compliance.

Because the trial court lacked sufficient evidence to determine whether plaintiff completed the requirements for substituted service by providing defendant driver with a copy of the return showing service on the Commissioner of Motor Vehicles, remand for further proceedings was necessary to enable the trial court to resolve the competing evidence regarding compliance. Messier v. Bushman, 2018 VT 93, 208 Vt. 261, 197 A.3d 882, 2018 Vt. LEXIS 128 (2018).

Construction.

In construing this section Supreme Court would not presume that statute was passed without common knowledge that necessary steps in commencement of action at law are ordinarily taken by attorney for plaintiff. Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Copy to defendant.

This section expressly permits service to be accomplished by delivery to the Commissioner of Motor Vehicles as attorney provided that a copy of the process is “sent”, the statute doesn’t say “delivered”, by the plaintiff to the defendant. Proulx v. Goulet, 315 F. Supp. 622, 1970 U.S. Dist. LEXIS 10747 (D. Vt. 1970).

This section, as amended, affords notice and opportunity to be heard, and provides all procedural safeguards for due process of law. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Provision that copy of process shall be sent by plaintiff to nonresident defendant is necessary part of such service to constitute due process of law under Fourteenth Amendment to Federal Constitution.Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Such act is ministerial one, not required to be done by plaintiff personally, manifest purpose of statute being to make it reasonably probable that defendant shall receive actual notice of pendency of action. Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Limitation of actions.

Long arm statute, as amended in 1968 to permit service of process outside the State for personal judgment actions, did not supersede the 1961 amendment to the statute allowing service via the Commissioner of Motor Vehicles. Accordingly, the three-year statute of limitations was tolled when defendant resided out of state for the entire period and had no property in Vermont. Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Prior to 1961 amendment to this section, periods of limitation provided by 14 V.S.A. § 1492 and 12 V.S.A. § 557 are not suspended under 14 V.S.A. § 1492 and 12 V.S.A. § 552 by reason of defendant’s absence from state where substituted service under 12 V.S.A. § 891 was available. Law's Admr. v. Culver, 121 Vt. 285, 155 A.2d 855, 1959 Vt. LEXIS 121 (1959).

Plaintiff’s affidavit.

Plaintiff’s personal affidavit was not required, and where copy of process was mailed to defendant by plaintiff’s duly authorized attorney, affidavit of compliance filed by such attorney on plaintiff’s behalf, reciting acts done by him in furtherance of client’s business, was “plaintiff’s affidavit,” within spirit and reason of statute. Brammall v. LaRose, 105 Vt. 345, 165 A. 916, 1933 Vt. LEXIS 222 (1933).

Cited.

Cited in Mintz v. Matalon, 148 Vt. 442, 535 A.2d 783, 1987 Vt. LEXIS 538 (1987); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990); Bashara v. Corliss, 161 Vt. 1, 632 A.2d 30, 1993 Vt. LEXIS 87 (1993).

Conduct and activities.

In this failure to warn and wrongful death action, the court allowed 30 days for discovery with respect to its potential jurisdiction over defendant seller where a Vermont-specific blog created the prospect of advertisements and other marketing efforts targeting this judicial district directly. Cernansky v. Lefebvre, 88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367 (D. Vt. 2015).

Writ of mandamus directing dismissal of action against religious organization for lack of jurisdiction was warranted because District Court abused its discretion in finding organization “at home” in Vermont and irreparable harm that would result from allowing case to proceed constituted exceptional circumstances. Shovah v. Roman Catholic Diocese of Albany (in re Roman Catholic Diocese of Albany), 745 F.3d 30, 2014 U.S. App. LEXIS 2403 (2d Cir. 2014).

Assuming that a Vermont company had shown the existence of “minimum contacts,” the court was unconvinced that the nature and extent of the foreign corporation’s activities were sufficiently continuous, systematic, and substantial to confer general jurisdiction, and therefore summary judgment was granted in favor of the foreign corporation. Hyperkinetics Corp. v. Flotec, Inc., 2003 U.S. Dist. LEXIS 20551 (D. Vt. Sept. 25, 2003).

Standard for determining whether personal jurisdiction exists is whether defendant has committed intentional and affirmative action constituting active planned participation in Vermont market, and court will look to whether defendant has engaged in general course of conduct purposefully directed toward Vermont and inevitably affecting persons in State. Artec Distributing, Inc. v. Video Playback, Inc., 799 F. Supp. 1558, 1992 U.S. Dist. LEXIS 14915 (D. Vt. 1992).

California sole-proprietor of unincorporated business had sufficient contacts with Vermont to support personal jurisdiction where defendant advertised his business in at least one magazine of national circulation, received a small number of inquiries from prospective Vermont customers, and actually obtained one Vermont customer. Blue Compass Corp. v. Polish Masters of America, 777 F. Supp. 4, 1991 U.S. Dist. LEXIS 16279 (D. Vt. 1991).

Vermont trial court properly exercised personal jurisdiction over defendant whose oral promise to repay loans was made in Vermont, where substantial portions of the agreement were executed in Vermont, and where defendant retained ownership of Vermont property, sale of which would trigger obligation to repay, long after she received all funds advanced by plaintiff. Cameron v. Burke, 153 Vt. 565, 572 A.2d 1361, 1990 Vt. LEXIS 16 (1990).

In a proceeding relying upon this section for jurisdiction, the action or proceeding against defendant need not arise out of defendant’s contracts or activities in Vermont. Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 1980 U.S. App. LEXIS 14392 (2d Cir. 1980).

This section’s provision for suit against a party served out of State who has, or to whom may be imputed, contacts or activities within the State sufficient to support a personal judgment against him reaches to the outer limits permitted by the due process clause. Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6, 1980 U.S. App. LEXIS 14392 (2d Cir. 1980).

In suit by resident retired employee against nonresident defendant’s employees’ retirement plan and its corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act, where plaintiff’s pleadings and unopposed supporting affidavits indicated that defendants’ contacts and activities at most consisted of three administrative letters mailed to plaintiff in Vermont, such contacts and activities were not sufficient to warrant exercise of personal jurisdiction over defendants by courts of this State, and dismissal of action was required. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that consequences of defendants’ activities have been felt in Vermont, standing alone, is insufficient to sustain personal jurisdiction by Vermont Federal District Court. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Fact that nonresident corporation sold its product in Vermont did not give rise to cause of action by resident plaintiff suing defendant corporation’s employees retirement plan and its nonresident corporate and individual administrators for breach of fiduciary duties, breach of contract and violations of Welfare and Pension Disclosure Act; thus Court lacked personal jurisdiction over defendants under this section. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

In personam proceeding.

Vermont’s long-arm statute has been interpreted as reflecting a clear policy allowing the State to assert jurisdiction over individual defendants to the full extent permitted by the Due Process Clause. Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 1996 U.S. App. LEXIS 11784 (2d Cir.), cert. denied, 519 U.S. 1006, 117 S. Ct. 508, 136 L. Ed. 2d 398, 1996 U.S. LEXIS 7171 (1996).

It is hardly unfair for defendants to defend themselves in jurisdictions where they choose to advertise their products. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

Where rule authorized service outside the state on “a person against whom a judgment for divorce or annulment of marriage is sought,” but provided that a judgment so obtained “shall affect only the interest, title, right, or status in question,” and this section authorized an in personam judgment based on out-of-state service in all instances where the minimum contacts test is met, rule and this section conflicted and this section controlled, and as a corollary, that portion of Emmons v. Emmons, 124 Vt. 107, 197 A.2d 812 (1964), which suggests that, absent voluntary submission, only personal service in the State can confer sufficient jurisdiction to authorize an alimony award is no longer governing. Von Ohlsen v. Von Ohlsen, 137 Vt. 377, 406 A.2d 393, 1979 Vt. LEXIS 995 (1979).

Presence in Vermont, of plane manufactured and originally sold by out-of-state corporation, was sufficient contact to permit service outside the state. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

Persons who owned Georgia partnership which serviced plane which crashed in Vermont, whose only contact with owner of the plane was through the pilot and co-pilot, whose affidavit refuted the idea they knew or had good reason to know their service would have causative effect in Vermont and who were not told the plane was going to Vermont could not be sued in Vermont. Miller v. Cousins Properties, Inc., 378 F. Supp. 711, 1974 U.S. Dist. LEXIS 9394 (D. Vt. 1974).

An order of notice outside, by itself, cannot create in personam jurisdiction. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

A denial of the order to vacate service would no more have conferred, by itself, personal jurisdiction not otherwise acquired, than could the order of notice outside the State create, by itself, in personam jurisdiction. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Defendants, who were in business of selling horses and who held themselves out as breeders and developers of world class horses, initiated business transaction with Vermont resident by advertising, more than one hundred times, in a national market that included Vermont, and, therefore, should have anticipated being sued in Vermont if dispute arose from these activities. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

In rem proceeding.

Personal jurisdiction over defendant horse sellers would not offend traditional notions of fair play and substantial justice where defendants did not argue that Vermont was an inconvenient forum in which to try plaintiff’s breach of warranty claim, horse’s diseased condition was discovered in Vermont, and potential witnesses to horse’s condition and expenses incurred were likely to be in Vermont. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

Personal service outside Vermont on New York executor under statute governing notice to out-of-state defendant supported in rem proceedings wherein motion was made for court of chancery to assert jurisdiction over certain property representing trust assets. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

This section and V.R.C.P. 4, governing process, reflect a conscious purpose to extend jurisdiction over individual defendants to the extent permitted by the due process clause within the limits defined in International Shoe Co. v. Washington, 326 U.S. 310 (1945), and McGee v. International Life Insurance Co., 355 U.S. 220 (1957). McKennis v. Collingwood, 55 F.R.D. 156, 1972 U.S. Dist. LEXIS 14219 (D. Vt. 1972); Messier v. Whitestown Packing Corp., 544 F. Supp. 8, 1982 U.S. Dist. LEXIS 14897 (D. Vt. 1982).

Denial of order to vacate personal service outside State in in rem actions could not by itself confer personal jurisdiction not otherwise acquired. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Service by order of notice on nonresident executor is sufficient, in an in rem action, to accomplish purpose of notice to estate of pendency of the litigation. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Chancellor who was not called upon to determine jurisdictional reach of court over property involved in trust should not have attempted to limit extent of notice afforded New York executor to realty in Vermont, in an in rem action. Avery v. Bender, 126 Vt. 342, 230 A.2d 786, 1967 Vt. LEXIS 195 (1967).

Law governing.

Since the Vermont long arm statute reflects a clear policy to assert jurisdiction over individuals to the full extent permitted by the due process clause, issue of whether Vermont court may exercise personal jurisdiction over nonresident defendants must be resolved under federal constitutional law. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

Where a defendant is amenable to service of process under statute extending jurisdiction over individual parties to the extent permitted by the due process clause and procedural rule governing personal service outside the State, the tolling provisions of statute of limitations applicable to wrongful death actions do not apply. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122, 1990 Vt. LEXIS 256 (1990).

Minimal contacts.

In an action in which plaintiff, a Vermont corporation, asserted breach of contract and tort claims against defendants, a Canadian corporation and a Norwegian company, the exercise of specific personal jurisdiction over the Canadian corporation comported with 12 V.S.A. § 913(b) and due process requirements because there was a significant degree of interrelationship between defendants such that the actions of the Norwegian company could be attributed to the Canadian corporation, and the formation of a contract for the purchase of helicopter engines from plaintiff was sufficient to reflect defendants’ purposeful availment of the privilege of conducting activities within Vermont. Mansfield Heliflight, Inc. v. Heli-One Can. Inc., 2012 U.S. Dist. LEXIS 140191 (D. Vt. Sept. 28, 2012).

In a Vermont corporation’s suit based upon a letter of intent and confidentiality agreement, personal jurisdiction existed over Pennsylvania corporations and officers because defendants, inter alia, engaged in active negotiations, visited the Vermont office, and allegedly engaged in tortious conduct. Country Home Prods. v. Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 2004 U.S. Dist. LEXIS 27210 (D. Vt. 2004).

Under the due process clause, court may assert personal jurisdiction only where defendant has certain minimum contacts with forum state such that maintenance of suit does not offend traditional notions of fair play and substantial justice, and contacts with State must be such that a defendant should reasonably anticipate being haled into court there. Artec Distributing, Inc. v. Video Playback, Inc., 799 F. Supp. 1558, 1992 U.S. Dist. LEXIS 14915 (D. Vt. 1992).

Constitutional touchstone for establishing personal jurisdiction requires that defendant have established certain minimum contacts with forum state before court may assert personal jurisdiction, and determinative factor is foreseeability; defendant’s conduct and connection with forum must be such that he should reasonably anticipate being haled into court there. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

For court to assert in personam jurisdiction over a nonresident defendant, it is not necessary that cause of action being litigated arise out of contacts defendant has with forum state, if defendant has established sufficient contacts with jurisdiction in general; exercise of such general jurisdiction comports with due process when it is based on general business contacts which are continuous and systematic in nature. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Nonresident surgeon and practice group did not have general business contacts with Vermont sufficient to confer general jurisdiction over them, where they were not licensed in Vermont, did not own property or maintain an office in Vermont, did not advertise or solicit business in Vermont, and only a small number of Vermont residents either occasionally went to Plattsburgh, New York for treatment or became ill while visiting and sought treatment on an emergency basis. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

There was no authority to support exercise of general personal jurisdiction over nonresident surgeon and practice group in absence of requisite minimum contacts, and argument was rejected that requiring defendants to defend malpractice action in Vermont would be reasonable and comport with fair play and substantial justice, where defendants could not have foreseen that their allegedly unintentional tortious conduct toward plaintiff, then a resident of New York, while treating plaintiff in New York, would have effects in Vermont. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Nonresident defendants’ mere purchase from and occasional return of products to Vermont video tape distributing company did not establish minimum contacts sufficient for court to exercise personal jurisdiction over them; defendants never affirmatively sought to do business with a Vermont corporation, but instead were solicited by the Vermont plaintiff. Artec Distributing, Inc. v. Video Playback, Inc., 799 F. Supp. 1558, 1992 U.S. Dist. LEXIS 14915 (D. Vt. 1992).

Before a nonresident defendant can be brought into a Vermont court, the plaintiff must show that the Vermont long arm statute reaches the defendant, and that jurisdiction over him may be maintained without offending the due process clause. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

While service pursuant to state statute is a permissible method of commencing actions in Federal District Courts, out-of-state defendants can be subjected to the reach of this section only in suits growing out of acts which have created essential contacts with the forum state. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

As to both diversity and federal question jurisdiction of Federal District Court, in personam jurisdiction can be obtained over nonresident defendants by substituted service on the Vermont Secretary of State only if defendants had sufficient “minimal contacts” in Vermont. Anderson v. Abex Corp., 418 F. Supp. 5, 1975 U.S. Dist. LEXIS 14907 (D. Vt. 1975), aff'd, 539 F.2d 703 (2d Cir. 1976).

Purpose.

Vermont’s Long-Arm Statute confers jurisdiction over nonresident defendants to full extent permitted by the Due Process Clause. Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78, 1995 Vt. LEXIS 24 (1995).

Separate maintenance proceeding.

Where actual notice of pendency of wife’s petition for separate maintenance describing real and personal property within jurisdiction of court belonging to nonresident petitionee and out of which court is asked to grant relief sought is served on petitionee in manner provided by §§ 911, 912 of this title, same proceedings may be had, under this section, so far as to affect title or right to possession of petitionee’s property in State, as if petition had been served on him in State. Wilder v. Wilder, 93 Vt. 105, 106 A. 562, 1919 Vt. LEXIS 143 (1919).

Cited.

Cited in Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981); Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74, 1999 Vt. LEXIS 94 (1999); Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007); Andrews v. Stam, 2007 VT 79, 182 Vt. 482, 939 A.2d 455, 2007 Vt. LEXIS 235 (2007).

Application to strict liability claim.

Comparative liability principles are applicable in strict products liability actions. Apportioning liability more effectively spreads recoveries from manufacturers for selling defective products than the “all or nothing” framework, under which some plaintiffs receive windfalls because they collect damages for injuries caused by their own negligence in addition to damages for injuries caused by the product defect, while some plaintiffs receive nothing because the court or jury has determined that their negligence constitutes misuse, assumption of risk, or an intervening cause, concepts often difficult to distinguish. Webb v. Navistar International Transportation Corp., 166 Vt. 119, 692 A.2d 343, 1996 Vt. LEXIS 126 (1996).

Juries may consider evidence of a plaintiff’s negligence in assessing damages as to strict liability claims as well as to negligence claims. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Apportionment of damages.

In the absence of action by the Legislature to amend Vermont’s comparative negligence statute, there was no reason to depart from the interpretation of the statute holding that only those joined in the same action should be considered in apportioning damages. A health center was not a party to plaintiff’s action against defendant, and defendant did not allege that plaintiff was comparatively negligent, so the statute did not apply. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

Allocation of the respective percentages of causal negligence attributable to the plaintiff and defendant is generally a fact question for the jury, and plaintiff’s recovery is automatically reduced according to the proportional amount of his or her causal negligence. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

In an action against a manufacturer of heating tape for damage caused by a fire which resulted from a short circuit in the tape wires, where the complaint claimed negligence, breach of warranty and strict liability, trial court’s assessment of sixty percent of the fire’s causation to the manufacturer and forty percent to plaintiffs, based on careless installation of the wires on the water pipes of plaintiff’s trailer, would be reversed and remanded for a new trial, since the trial court failed to make specific findings and conclusions as to each theory of recovery and as a consequence of that failure Supreme Court could not ascertain whether plaintiff’s judgment was reduced by forty percent because of the application of comparative negligence to the negligence claim, or because of the application of a comparative fault principle to the strict liability claim. Page v. Smith-Gates Corp., 143 Vt. 280, 465 A.2d 1102, 1983 Vt. LEXIS 514 (1983).

In a personal injury action brought against a taxi owner and its employee, the driver of a taxi that struck and injured the plaintiff, the jury’s verdict was not fatally defective for failing to apportion damages between the two defendants since this section requires apportionment among joint tortfeasors, and that was not the basis for recovery in the case. English v. Myers, 142 Vt. 144, 454 A.2d 251, 1982 Vt. LEXIS 623 (1982).

Burden of proof.

A fundamental tenet of the comparative negligence doctrine in Vermont and other states is that defendant, in asserting such a defense, bears the burden of proving by a preponderance of the evidence that plaintiff was negligent and that such negligence was a proximate cause of the plaintiff’s injuries. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Where the issue of comparative negligence is raised and the evidence supports it, the court must instruct that just as plaintiff bore the burden of proof in showing that defendant was negligent, the defendant bears the burden of proving by a preponderance of the evidence that plaintiff was also negligent, and that such negligence, if any, was a proximate cause of the injuries alleged. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Even though the court expressly instructed that it was plaintiff’s burden to prove not only that defendant was negligent, but also “to prove by a preponderance of the evidence that the negligence was the proximate cause of his injuries,” it was prejudicial error for the court not to instruct that—for purposes of establishing plaintiff’s comparative negligence—it was defendant’s burden to prove that plaintiff’s negligence was a proximate cause of the accident, and reversal of the judgment was required. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Burden of proof in negligence action is on defendant to show not only negligence on part of plaintiff forming part of the proximate cause of the accident, but that it exceeded any negligence on the part of the defendant. Frost v. Tisbert, 135 Vt. 345, 376 A.2d 748, 1977 Vt. LEXIS 625 (1977).

Where there is more than one cause concurring to produce an injury, and one such cause is charged against the plaintiff, the burden of proof on that issue is on the defendant. Lee v. Wheeler, 130 Vt. 624, 298 A.2d 851, 1972 Vt. LEXIS 326 (1972).

Evidence.

The trial court properly rejected plaintiff’s motion for judgment as a matter of law where the evidence, including defendant’s testimony that she observed plaintiff’s right-turn signal and plaintiff’s acknowledgment that he slowed as he entered the intersection, was sufficient to support the comparative negligence defense. Barber v. LaFromboise, 2006 VT 77, 180 Vt. 150, 908 A.2d 436, 2006 Vt. LEXIS 164 (2006).

Where plaintiff, who was injured in an automobile accident, was sitting partially upon the console which housed the shifting lever at the time the vehicle left the road, but no evidence was presented to show that plaintiff’s seating position obstructed the view of defendant who was driving the vehicle or interfered with her control over the driving mechanism, plaintiff was not contributorily negligent. Duncan v. Wescott, 142 Vt. 471, 457 A.2d 277, 1983 Vt. LEXIS 412 (1983).

Historical.

Since icy conditions were an obvious and necessary danger inherent in sport of skiing, ski area had no duty to warn plaintiff or take steps to eliminate ice, and summary judgment for ski area in personal injury action was appropriate. Nelson v. Snowridge, Inc., 818 F. Supp. 80, 1993 U.S. Dist. LEXIS 4990 (D. Vt. 1993).

Supreme Court would assume that issue of individual versus combined negligence was considered by the legislature and that the state of the law in other jurisdictions was a factor in this consideration. Stannard v. Harris, 135 Vt. 544, 380 A.2d 101, 1977 Vt. LEXIS 673 (1977).

Instructions.

Because there was no allegation of plaintiff’s negligence after she discovered the injury to her property, and no discrete damages allegedly attributable solely to plaintiff, the trial court should have instructed the jury on comparative negligence rather than on damages mitigation to respond to its claim of plaintiff’s negligence. Langlois v. Town of Proctor, 2014 VT 130, 198 Vt. 137, 113 A.3d 44, 2014 Vt. LEXIS 134 (2014).

Where a dog, known to its owner to be dangerous, bit another person, and evidence was presented from which jury could infer that person bitten had been contributorily negligent, and trial court correctly charged jury on negligence as basis for claim, and on contributory negligence, it was also necessary to instruct the jury to compare the negligence of the two parties. Carr v. Case, 135 Vt. 524, 380 A.2d 91, 1977 Vt. LEXIS 671 (1977).

Judgment notwithstanding the verdict in multi-party action.

Where jury verdict held that plaintiff was 48% negligent in causing collision and resulting injuries, the state 30% negligent and truck driver and his employer 22% negligent, following entry of judgment notwithstanding the verdict in favor of the state, trial court erred in granting judgment notwithstanding the verdict in favor of remaining defendants, based on a comparison of the fault of the remaining parties as determined by the jury; plaintiff was entitled to a new trial on the issue of liability between the remaining parties without consideration of the state’s negligence. McCormack v. State, 150 Vt. 443, 553 A.2d 566, 1988 Vt. LEXIS 178 (1988).

Negligence contributing to injury only.

A plaintiff’s negligence which does not contribute to the cause of the accident leading to the injury, but does contribute to the injury, may be considered by the jury in assessing damages. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Negligence of both parties.

Comparative negligence requires the negligence of the plaintiff to be compared to the negligence of the defendant, and recovery is reduced according to the proportional amount of plaintiff’s negligence. Gilman v. Towmotor Corp., 160 Vt. 116, 621 A.2d 1260, 1992 Vt. LEXIS 209 (1992).

Under this section, a plaintiff can recover only if her own negligence contributed to no more than half the cause of the accident, and even then only in proportion to the amount of negligence attributed to defendant. (Per Morse, J., with one justice concurring and one justice concurring in the result.) Favreau v. Miller, 156 Vt. 222, 591 A.2d 68, 1991 Vt. LEXIS 47 (1991).

If jury finds culpable negligence on part of both parties, then doctrine of comparative negligence should be applied and any damages assessed on that basis. Tufts v. Wyand, 148 Vt. 528, 536 A.2d 541, 1987 Vt. LEXIS 544 (1987).

Nonuse of automobile seat belts.

Evidence regarding nonuse of automobile seat belts is admissible in comparative negligence cases. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

The question of whether nonuse of automobile seat belts constitutes negligence is one for the jury to decide in assessing damages. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Plaintiff’s nonuse of an automobile seat belt, which results in aggravating the damages resulting from an accident, is subject to a mitigation of damages or an available consequences set-off. Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1985 U.S. Dist. LEXIS 23149 (D. Vt. 1985).

Particular cases.

In a skier’s negligence suit against a ski resort operator, a jury verdict in favor of the operator was upheld because a lift ticket was properly admitted, the District Court was well within its discretion in refusing to allow any direct reference to the insurance industry during cross-examination of an expert, the District Court did not abuse its discretion in refusing to permit a full hour for the skier’s counsel to question the venire panel, and the District Court did not err by rejecting the skier’s challenge for cause of a prospective juror. Taylor v. Stratton Corp., 514 Fed. Appx. 68, 2013 U.S. App. LEXIS 5351 (2d Cir. 2013).

There was serious doubt whether this section would apply where defendants were not joined in same action, one defendant was found liable under the dram shop statute rather than in a negligence cause of action, and there was no allegation that plaintiff was negligent. Plante v. Johnson, 152 Vt. 270, 565 A.2d 1346, 1989 Vt. LEXIS 169 (1989).

Proximate cause.

Contributory negligence does not bar or reduce recovery unless it is affirmatively demonstrated that it proximately caused the accident. Duncan v. Wescott, 142 Vt. 471, 457 A.2d 277, 1983 Vt. LEXIS 412 (1983).

Contributory negligence does not bar or reduce recovery unless it is the proximate cause, or a part thereof, of the accident. Lee v. Wheeler, 130 Vt. 624, 298 A.2d 851, 1972 Vt. LEXIS 326 (1972).

Questions for trier of fact.

In negligence action by customer who, while leaving, fell down front steps of store, which claimed plaintiff’s own negligence barred her recovery, whether interior and steps of store were negligently arranged, and whether plaintiff’s conduct was negligent, and a comparison of any negligence found in the parties, was for the jury, and where the verdict was not shown to be unreasonable, a product of jury misconduct or improperly influenced by passion or prejudice, it would stand. Shea v. Peter Glen Shops, Inc., 132 Vt. 317, 318 A.2d 177, 1974 Vt. LEXIS 340 (1974).

Res ipsa loquitur.

Contributory negligence does not bar recovery in a case brought under a res ipsa loquitur theory. Cyr v. Green Mountain Power Corp., 145 Vt. 231, 485 A.2d 1265, 1984 Vt. LEXIS 582 (1984).

If a plaintiff presents evidence which satisfies the elements of res ipsa loquitur, even in the face of conflicting evidence, the jury must be given the opportunity to infer negligence on the part of the defendant; if the jury finds defendant negligent, then it must compare that negligence with any negligence it finds was committed by plaintiff. Cyr v. Green Mountain Power Corp., 145 Vt. 231, 485 A.2d 1265, 1984 Vt. LEXIS 582 (1984).

Sports.

The sports participation acceptance of inherent risk provision set forth in section 1037 of this title extends to personal injuries arising from participation in any sport, without regard to the comparative negligence rules of this section. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Cited.

Cited in Zinn v. Tobin Packing Co., 140 Vt. 410, 438 A.2d 1110, 1981 Vt. LEXIS 628 (1981); Eagle Star Insurance Co. of America v. Metromedia, Inc., 578 F. Supp. 184, 1984 U.S. Dist. LEXIS 20753 (D. Vt. 1984); Hardy v. Berisha, 144 Vt. 130, 474 A.2d 93, 1984 Vt. LEXIS 422 (1984); Berisha v. Hardy, 144 Vt. 136, 474 A.2d 90, 1984 Vt. LEXIS 426 (1984); Grazulis v. Curtis, 149 Vt. 371, 543 A.2d 1324, 1988 Vt. LEXIS 39 (1988); Vince v. Wilson, 151 Vt. 425, 561 A.2d 103, 1989 Vt. LEXIS 81 (1989); Smith v. Gainer, 153 Vt. 442, 571 A.2d 70, 1990 Vt. LEXIS 6 (1990); Jewell v. Dyer, 154 Vt. 486, 578 A.2d 125, 1990 Vt. LEXIS 95 (1990); Dillworth v. Gambardella, 776 F. Supp. 170, 1991 U.S. Dist. LEXIS 15594 (D. Vt. 1991), Nelson v. Snowridge, Inc., 818 F. Supp. 80, 1993 U.S. Dist. LEXIS 4990 (D. Vt. 1993); Estate of Kelly v. Moguls, Inc., 160 Vt. 531, 632 A.2d 360, 1993 Vt. LEXIS 79 (1993); Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765, 1994 Vt. LEXIS 44 (1994); Cooper v. Burnor, 170 Vt. 583, 750 A.2d 974, 1999 Vt. LEXIS 409 (1999); Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 762 A.2d 826, 2000 Vt. LEXIS 255 (2000); Bazzano v. Killington Country Village, Inc., 2003 VT 46, 175 Vt. 534, 830 A.2d 24, 2003 Vt. LEXIS 90 (2003); Wisdom v. Tjx Cos., 410 F. Supp. 2d 336, 2006 U.S. Dist. LEXIS 3166 (D. Vt. 2006) (mem.).

Law Reviews —

Contribution among joint tortfeasors, see 7 Vt. L. Rev. 337 (1982).

Generally.

The sports injury statute states that a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary; whether a ski area’s use of wooden corral posts was an obvious and necessary risk should be a threshold question of fact decided by a jury. Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765, 1994 Vt. LEXIS 44 (1994).

Sports participants accept the risks of inherent dangers obvious and necessary to participation in the sport. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Burden of proof.

Trial court did not commit plain error in assigning to plaintiff the burden of proving whether or not this section applied to his injury. Mahdessian v. Stratton Corp., 210 F.3d 355, 2000 U.S. App. LEXIS 13491 (2d Cir. 2000).

Construction.

Although a sentence in an arbitration agreement stating that by signing the agreement the participant agreed to assume all risks of participating in a zip-line adventure course, including those caused by the operator’s negligence, the agreement would not be enforced on public policy grounds, portions of the arbitration provision remained in effect, and the zip-line park operator was free to assert assumption of risk as a defense. Littlejohn v. Timberquest Park at Magic, LLC, 116 F. Supp. 3d 422, 2015 U.S. Dist. LEXIS 94592 (D. Vt. 2015).

This section applied even though danger to which skier was exposed resulted from a man-made obstacle. Mahdessian v. Stratton Corp., 210 F.3d 355, 2000 U.S. App. LEXIS 13491 (2d Cir. 2000).

The language of this provision, as reflected in season pass to ski resort, would not bar jury from finding ski resort liable for injuries caused by negligent failure to alert plaintiff of danger. Pitasi v. Stratton Corp., 968 F.2d 1558, 1992 U.S. App. LEXIS 16051 (2d Cir. 1992).

This section is applicable in suit by one skier against another for injuries caused in collision; this section is not limited to actions against ski resorts. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

This section extends to personal injuries arising from participation in any sport, without regard to the comparative negligence statute set forth in section 1036 of this title, and without limitation as to the identity of the defendant. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

As long as the risk, in this case collision among skiers, is found to be obvious and necessary, then this section will apply to shield the defendant by removing any duty owed to the plaintiff. Dillworth v. Gambardella, 776 F. Supp. 170, 1991 U.S. Dist. LEXIS 15594 (D. Vt. 1991), aff'd, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Jury instruction.

Under this section, a collision between skiers may be an inherent, obvious, and necessary danger so that a jury may be instructed as to assumption of risk. Dillworth v. Gambardella, 970 F.2d 1113, 1992 U.S. App. LEXIS 17333 (2d Cir. 1992).

Summary judgment denied.

In this failure to warn and wrongful death action, dismissal based on assumption of risk was not warranted because whether risk was readily obvious, or involved more specialized knowledge, was matter in dispute and may be explored during discovery. Cernansky v. Lefebvre, 88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367 (D. Vt. 2015).

Defendants were not entitled to summary judgment because exculpatory releases signed by the contestant were void as contrary to public policy, insofar as they released defendants from liability for negligence and under Vermont’s sports injury statute, 12 V.S.A. § 1037 , the court could not as a matter of law determine that the jump was an obvious and necessary danger of dual slalom bicycle racing. Umali v. Mount Snow, Ltd., 247 F. Supp. 2d 567, 2003 U.S. Dist. LEXIS 3463 (D. Vt. 2003).

Cited.

Cited in Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939, 1985 Vt. LEXIS 335 (1985); Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35, 1997 Vt. LEXIS 267 (1997).

Law Reviews —

Vermont sports injury liability statute; assumption of risk and the injured skier after Sunday v. Stratton Corp., see 3 Vt. L. Rev. 129 (1978).

Appeal.

Appellate court lacked jurisdiction over a district court order which ruled on the merits of defendants’ special motions to strike plaintiffs’ defamation action under Vermont’s anti-SLAPP statute because it did not fall within the collateral order doctrine, as it involved fact-related legal issues. Ernst v. Carrigan, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Attorney’s fees.

Plain language “shall award” in the anti-SLAPP (strategic lawsuit against public participation) statute indicates that the award of fees is mandatory when a motion to strike is granted. When a statute requires an award of attorney’s fees, it is not within the trial court’s discretion to determine whether to award such fees; the trial court does, however, have discretion in determining the amount of an award and the court will disturb it only if the court has abused that discretion. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

Anti-SLAPP (strategic lawsuit against public participation) statute does not limit recovery to those fees that are not reimbursed by insurance; therefore, the trial court erred in limiting the award of attorney’s fees to the amount of defendant’s litigation-insurance deductible. The plain language of the statute does not support this construction in that the statute contains no provision limiting the recovery of attorney’s fees to those amounts that were incurred directly by the defendant as opposed to by a third party; moreover, this construction is at odds with the remedial purpose of the statute. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

Construction.

Automatic stay provision of Vermont’s anti-SLAPP statute could not apply to plaintiffs’ federal claim, but this did not prevent its application to her state law claim. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

Plaintiffs’ state law claim for intentional interference with custody did not arise from protected speech but rather, arose from a defendant’s furtive departure from the United States immediately before she would have been obligated to surrender the child to plaintiff pursuant to a court order, and the claims asserted against the remaining defendants centered on the support that they allegedly provided to her to carry out this wrongful conduct. The fact that some of the activities that they engaged in might constitute protected speech in some contexts did not salvage the anti-SLAPP claim. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

Although this statute does not define “the complaint,” it is interpreted to include an amended complaint; otherwise, anti-free-speech claims could be omitted from the original complaint and then added after the sixty-day period ran. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Anti-Strategic Lawsuit Against Public Participation statute should be construed as limited in scope and great caution should be exercised in its interpretation. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Evidence.

Although defendants’ affidavits could be considered in connection with their motions to strike under Vermont’s anti-strategic lawsuits against public participation (SLAPP) statute, they could not be considered for purposes of their motion to dismiss for failure to state a claim. Jenkins v. Miller, 2017 U.S. Dist. LEXIS 160793 (D. Vt. Sept. 29, 2017).

When parts of an anonymous letter claiming a couple were, inter alia, dishonest, felons, and drug addicts, were read at a meeting of the town selectboard, they qualified as the exercise of free speech giving rise to the right to file a special motion to strike; the couple presented no evidence of what portions were read aloud and they did not establish that the letter was entirely false. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Where an Internet publication was published in a public forum, and the publication was in furtherance of students’ right to free speech and involved speech concerning a public issue, the students and a college have met their threshold burden of proving that their conduct is protected by the anti-SLAPP statute. Haywood v. St. Michael's College, 2012 U.S. Dist. LEXIS 177468 (D. Vt. Dec. 14, 2012), aff'd, 536 Fed. Appx. 123, 2013 U.S. App. LEXIS 21116 (2d Cir. 2013).

Conduct meets all three definitions for the anti-SLAPP statute because (1) the plaintiff, as a candidate for President, was in the public eye; (2) the plaintiff had the potential to affect large numbers of people with his candidacy; and (3) the election, as well as each issue area addressed in an Internet article posted by certain college students was a topic of widespread public interest. Haywood v. St. Michael's College, 2012 U.S. Dist. LEXIS 177468 (D. Vt. Dec. 14, 2012), aff'd, 536 Fed. Appx. 123, 2013 U.S. App. LEXIS 21116 (2d Cir. 2013).

Mootness.

Although the trial court dismissed plaintiff’s suit against defendant on other grounds, defendant was still entitled to relief in the form of attorney’s fees if successful in dismissing plaintiff’s suit under the anti-Strategic Lawsuit Against Public Participation statute. Accordingly, defendant was entitled to a ruling on its motion to strike, and the motion was not moot. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Public interest.

After an anonymous letter was distributed claiming a couple were, inter alia, dishonest, felons, and drug addicts, the couple’s suit raising tort claims was subject to a motion to strike, which failed as to when the letter was sent to residents and handed out at a store because, even if the couple were in the public eye due to participation in zoning and school issues, the letter was insufficiently connected to their role in the issues and did not itself concern a public issue or matter of public interest. Ernst v. Kauffman, 50 F. Supp. 3d 553, 2014 U.S. Dist. LEXIS 141394 (D. Vt. 2014), app. dismissed, 814 F.3d 116, 2016 U.S. App. LEXIS 3024 (2d Cir. 2016).

Public issue.

Plaintiff’s claims against defendant newspaper were properly struck under the anti-SLAPP (strategic lawsuit against public participation) statute, as the articles published by defendant were exercises of free speech and connected to a public issue because they concerned public safety, law enforcement activity, possible criminal behavior, and the reporting of arrests, and the statements had reasonable factual support, including a state police safety bulletin, social media postings by plaintiff, and a reporter’s personal observations. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

Matters connected to law enforcement investigation, public safety, and crime in the community are of public concern for purposes of the anti-SLAPP (strategic lawsuit against public participation) statute. Under the First Amendment, the public and the media have a constitutional right of access to information relating to the activities of law enforcement officers and to information concerning crime in the community. Cornelius v. Chronicle, Inc., 2019 VT 4, 209 Vt. 405, 206 A.3d 710, 2019 Vt. LEXIS 5 (2019).

“In connection with a public issue” requirement of the anti-Strategic Lawsuit Against Public Participation (SLAPP) statute must be met in any motion to strike under the statute, regardless of the type of activity. The Court reaches this result as a matter of statutory interpretation in order to implement the intent of the legislature in adopting the anti-SLAPP remedy and keeping that remedy within the bounds of the paradigm on which it was based. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Because the “in connection with a public issue” requirement of the anti-Strategic Lawsuit Against Public Participation statute had to be met in any motion to strike under the statute, and the divorce for which defendant business appraiser offered expert testimony was not a matter of public significance, the trial court’s failure to rule on its motion to strike was harmless error. Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, 200 Vt. 465, 133 A.3d 836, 2015 Vt. LEXIS 110 (2015).

Constitutionality.

Statute governing certificates of merit in medical malpractice cases did not violate the Common Benefits Clause of the Vermont Constitution, as the situation experienced by plaintiff, whose case would be dismissed because he had failed to file the certificate with his complaint and was now time-barred, and similar litigants was created by their own inadvertence, their decision on when to file the action, and the operation of the applicable statute of limitations. Furthermore, both the certificate statute and the statute of limitations were reasonably related to legitimate governmental purposes. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Amendment of complaint to add.

Legislature enacted the certificate-of-merit statute with a clear understanding that the purpose of the simultaneous-filing requirement was to ensure that claims against health care providers had been adequately investigated and determined to have merit by a qualified expert before they were filed. Thus, the trial court properly denied plaintiff’s motion to amend her complaint to add a certificate of merit. McClellan v. Haddock, 2017 VT 13, 204 Vt. 252, 166 A.3d 579, 2017 Vt. LEXIS 14 (2017).

Application.

Requirement that a certificate of merit in a medical malpractice case be filed simultaneously with the complaint is mandatory and demands strict compliance. When a certificate of merit is entirely omitted from the original complaint, dismissal is necessary to effectuate the statutory purpose of screening out frivolous claims at the outset. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

It is irrelevant whether the defendants suffered prejudice due to a plaintiff’s failure to file the certificate of merit in a medical malpractice case. The filing requirement must be strictly complied with, and the failure to do so is the fault of the plaintiff, not the defendants. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action. Thus, the dismissal of plaintiff’s case for failing to file a certificate of merit was not a dismissal for lack of subject matter jurisdiction, and plaintiff’s claim was not protected by the statute governing a new action after the failure of the original action. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Because the only injury alleged in the complaint was the decedent’s death, which occurred after the operative date of the certificate-of-merit requirement, and the only basis for recovery alleged was the wrongful death statute, the certificate-of-merit statute applied. McClellan v. Haddock, 2017 VT 13, 204 Vt. 252, 166 A.3d 579, 2017 Vt. LEXIS 14 (2017).

Deficient certificate.

Dismissal may not necessarily be required where the plaintiff files a timely certificate of merit that nevertheless fails in some particular to meet the requirements of the statute governing certificates of merit in medical malpractice cases, and where allowing an amendment to correct the deficiency—rather than ordering dismissal—would not undermine the legislative purpose. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Exceptions.

It is clear from the language of the statute, the purpose of the certificate of merit (COM) requirement in medical malpractice cases, and Vermont case law that a court cannot exempt a plaintiff from the COM requirement unless it affirmatively determines from the four corners of the initial complaint that expert testimony is unnecessary. Bittner v. Centurion of Vermont, 2021 VT 73, — Vt. —, 264 A.3d 850, 2021 Vt. LEXIS 97 (Vt. 2021).

In a case where plaintiff did not file a certificate of merit with her medical malpractice claim, the trial court did not find that the case presented a “rare instance” in which expert testimony was not required. It therefore erred in allowing the claim to proceed. Bittner v. Centurion of Vermont, 2021 VT 73, — Vt. —, 264 A.3d 850, 2021 Vt. LEXIS 97 (Vt. 2021).

Medical malpractice claim involving the decedent’s suicide while in the custody of the Department of Corrections was not a “rare instance” where expert testimony was unnecessary; thus, because no certificate of merit was filed simultaneously with the complaint, the medical malpractice claim had to be dismissed. Whether defendants’ evaluations and treatment of the decedent constituted medical malpractice turned on the standard of care for mental health professionals treating individuals with depression and suicidal ideation, which were not matters of common knowledge and experience; likewise, plaintiff’s allegation that defendants committed medical malpractice by failing to include a mental health alert in a transfer note involved complex psychiatric and medical issues. Bittner v. Centurion of Vermont, 2021 VT 73, — Vt. —, 264 A.3d 850, 2021 Vt. LEXIS 97 (Vt. 2021).

Extension of limitations period.

Phrase “where the civil action will be filed” in the certificate-of-merit statute plainly requires that an extension request precede the filing of the complaint, which is consistent with the legislative purpose of requiring that plaintiffs conduct their investigation and obtain the requisite expert opinion before subjecting defendants to the burdens of litigation. Moreover, even if the statute could be construed to authorize an extension request after the filing of a complaint, the trial court here could not have granted a ninety-day extension of a statute of limitation that had already expired when the motion to amend was filed. McClellan v. Haddock, 2017 VT 13, 204 Vt. 252, 166 A.3d 579, 2017 Vt. LEXIS 14 (2017).

Generally.

Deposition of resident of Vermont may be taken here to be used in a court without this state. In re Turner, 71 Vt. 382, 45 A. 754, 1899 Vt. LEXIS 199 (1899).

Agent.

Common law principle that an agent was a competent witness, either for or against principal, to prove his acts done, or contracts made, as agent, and his authority therefor from his principal, was equally applicable to case of a written contract purporting to be executed by agent in name and behalf of principal, as to a case of a verbal contract. Lytle v. Bond’s Est., 40 Vt. 618 (1868), same case 39 Vt. 388.

—Witness to capacity of testator.

A legatee under a will was not thereby rendered incompetent as a witness to capacity of testator. In re Buckman's Will, 64 Vt. 313, 24 A. 252, 1892 Vt. LEXIS 42 (1892).

Interest bearing on weight and credibility.

Any interest a fellow motorcycle rider had in the outcome of the trial or any relationship he had to the insured was not a disqualification to his status as a witness but went to credibility; any interests he had were merely fodder for cross-examination, and he could therefore testify regarding the events of the accident provided his testimony was otherwise admissible. Rotman v. Progressive Ins. Co., 955 F. Supp. 2d 272, 2013 U.S. Dist. LEXIS 91596 (D. Vt. 2013).

It made no difference as to competency of certain declarations as evidence, whether plaintiff’s interest was greater to have will established or defeated, but such consideration might be of importance in regard to weight and credibility of such evidence. Robinson v. Hutchinson, 31 Vt. 443 (1859), same case 26 Vt. 38, 167 A.L.R. 30.

Questions for court.

The competency of a witness is a preliminary question for the trial court. Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90, 1965 Vt. LEXIS 233 (1965).

Witness as to execution of will.

Proponent of will, who was also legatee, but was not an attesting witness, was competent to testify to circumstances attending its execution. In re Wheelock's Will, 76 Vt. 235, 56 A. 1013, 1904 Vt. LEXIS 128 (1904).

I. INCOMPETENCY GENERALLY.

Agents.

Section applied only to parties, and not their agents. Kittell v. Missisquoi R.R., 56 Vt. 96, 1883 Vt. LEXIS 88 (1883); Cheney v. Pierce, 38 Vt. 515, 1866 Vt. LEXIS 23 (1866).

Agent or officer through whom another made contract was in no legal sense a party to contract. Poquet v. North Hero, 44 Vt. 91, 1871 Vt. LEXIS 98 (1871).

Agent who made contract on behalf of his principal was competent witness after death of principal, in a suit against principal’s estate, to prove both agency and contract. Gifford v. Thomas' Est., 62 Vt. 34, 19 A. 1088, 1889 Vt. LEXIS 103 (1889).

Person could be witness in his own behalf to prove settlement with deceased overseer of poor, since overseer was but agent of town. Billings v. Kneen, 57 Vt. 428, 1885 Vt. LEXIS 75 (1885).

Where a note was signed “Richard Bond, by Stillman Clark,” Clark was a competent witness after Bond’s decease, being an agent. Lytle v. Bond’s Est., 40 Vt. 618 (1868), same case 39 Vt. 388.

Application to answer to bill in chancery.

Section did not apply to answer to bill or petition in chancery, but answer, when responsive, was evidence, and was not affected by section. Blaisdell v. Bowers, 40 Vt. 126, 1868 Vt. LEXIS 11 (1868).

—Generally.

Status as to insanity and the existence of disqualification is determined as of time testimony sought to be excluded is offered. Taylor's Guardian v. Taylor, 117 Vt. 399, 93 A.2d 102, 1952 Vt. LEXIS 153 (1952).

Collateral transaction bearing on matter in issue.

Where party was disqualified, by reason of other party being dead, from testifying to contract in issue and on trial, he could be witness to testify to another contract or transaction between himself and deceased person which came into case collaterally and as a fact bearing collaterally upon the contract or cause of action in issue and on trial, and which had effect to establish that contract in issue and on trial never existed. Morse v. Law, 44 Vt. 561, 1872 Vt. LEXIS 69 (1872).

Where maker of note sued on was insane, plaintiff could not be witness to contract between them, but could testify to transactions with third party, for whose benefit money was loaned, regarding extinguishment, since such transactions were collateral to contract. Gregg v. Willis, 71 Vt. 313, 45 A. 229, 1899 Vt. LEXIS 181 (1899).

Where issue in case was whether defendant had purchased note in good faith from bearer, bearer was competent witness in suit for note by administrator of person from whom note was obtained, since transaction between deceased and bearer was collateral to issue. Benoir v. Paquin, 40 Vt. 199, 1867 Vt. LEXIS 65 (1867).

In foreclosure proceeding, original payee of mortgage note was competent witness to prove that deceased payor and assignee of mortgage substituted a new note for old one, since payee was not party to substitution transaction. Richardson v. Wright, 58 Vt. 367, 5 A. 287, 1886 Vt. LEXIS 102 (1886).

Conduct.

Where the beneficiary of this section’s disqualification acts inconsistently with the disqualification, the disqualification is waived. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

The Dead Man’s statute provides that a party shall not be allowed to testify in his own favor where the other party to the contract or cause of action in issue and on trial is dead; however, there is a broad waiver rule which says that the party using the statute cannot question witnesses who spoke with the deceased and then disallow the adverse party from doing so; party cannot open the door and then close it to suit party’s needs. Abbiati v. Buttura & Sons, Inc., 161 Vt. 314, 639 A.2d 988, 1994 Vt. LEXIS 15 (1994).

Construction.

This section governed question of competency of decedent’s statements in federal court civil action, since action was founded in diversity and Vermont substantive law provided rule of decision. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Subsection (5) of this section did not provide exception to general rule disqualifying interested parties from testifying in their own favor when other party is deceased, where statements of decedent in question were not declarations or memoranda, but were merely pieces of conversation decedent had with witness. Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

This section must be construed in favor of the challenged witness. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Section is exception to general rule of competency, having been originally a proviso in an act having for its object removal and not creation of disqualification, and therefore it should be given a construction inclining towards competency, although a reasonable one in view of the fraudulent practices against which statute was aimed; moreover, it should not be given effect beyond the fair scope of its language. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623 (1947); Paska v. Saunders, 103 Vt. 204, 153 A. 451 (1930); Lytle v. Bond’s Est., 40 Vt. 618 (1868), same case 39 Vt. 388.

Competency is now the rule, and incompetency the exception, and provisions disqualifying “other party” to testify in his own favor when one of original parties to contract or cause of action in issue and on trial is dead, or when an executor or administrator is a party, operate as a limitation or exception to the rule. Comstock’s Adm’r v. Jacobs, 89 Vt. 133, 94 A. 497 (1915), same case 64 Vt. 277, 78 A. 1017, 86 Vt. 182, 84 A. 568, 89 Vt. 510, 96 A. 4.

Contract between sureties.

Where surety on a promissory note sued estate of a deceased surety on same note to recover amount paid, maker was witness to prove that plaintiff was not a co-surety, but only a surety for the deceased, since he was not party to contract between sureties. Canfield v. Bentley's Est., 60 Vt. 655, 12 A. 655, 1888 Vt. LEXIS 196 (1888).

Contract raised as matter of defense.

In action by creditors against widow to set aside conveyance to her of property which her husband acquired by will executed in consideration of testator’s support, widow was not competent witness to a contract with testator that property was to be hers after her husband’s death, since by raising alleged contract as defense, she made it a matter in issue. Farmer's Nat'l Bank v. Thomson, 74 Vt. 442, 52 A. 961, 1902 Vt. LEXIS 155 (1902).

Conveyances, grantor, as witness.

Grantor in defendant’s chain of title was not a “a party to the contract or cause of action in issue and on trial.” Sowles v. Butler, 71 Vt. 271, 44 A. 355, 1899 Vt. LEXIS 173 (1899).

Where deed to intestate was in dispute, grantor was incompetent to testify about extent to which intestate was informed about a right appurtenant thereto. McElroy v. McLeay, 71 Vt. 396, 45 A. 898, 1899 Vt. LEXIS 203 (1899).

One whose only part in transaction had been to convey the property as administrator of prior holder upon the direction of a party, was not himself a party within meaning of section. Atkins' Est. v. Atkins' Est., 69 Vt. 270, 37 A. 746, 1896 Vt. LEXIS 52 (1896).

Death of all other parties, co-signer of note.

Plaintiff was competent witness as to transaction between himself and defendant with relation to consideration of note unaffected by fact that a co-signer was dead. Read v. Sturtevant, 40 Vt. 521, 1868 Vt. LEXIS 41 (1868).

Death of all other parties, generally.

This section does not apply where there is more than one party on one side and not all of them are dead. Mislosky v. Wilhelm, 130 Vt. 63, 286 A.2d 267, 1971 Vt. LEXIS 222 (1971).

The Dead Man’s Statute operates to exclude a party from testifying in his own favor only when all other parties to the deed are dead. Bemis v. Lamb, 135 Vt. 618, 383 A.2d 614, 1978 Vt. LEXIS 748 (1978).

It is death of sole party to contract, or, if more than one, death of all, that operates to exclude other party from testifying in his own favor. Pope v. Hogan, 92 Vt. 250, 102 A. 937, 1918 Vt. LEXIS 160 (1918).

Death of all other parties, partners.

Where contract with partnership was originally made with member thereof since deceased, other party thereto was a competent witness in his own behalf in a suit thereon against surviving partner. Bradish & Goodenough v. Belknap, 46 Vt. 1 (1873), same case 41 Vt. 172, 22 A.L.R.2d 1086; French v. Barron, 49 Vt. 471, 1877 Vt. LEXIS 38 (1877).

Effect.

Where petitioners for further accounting by executrix had once waived question of her competency as witness, they are concluded by such waiver. Trask v. Walker's Est., 100 Vt. 51, 134 A. 853, 1926 Vt. LEXIS 121 (1926).

Ejectment based on contract with deceased.

In action of ejectment against heir of former owner, plaintiff was not competent witness to prove that former owner agreed by parol to deed premises to him on payment of a certain sum, which he paid, since agreement was contract in issue. Pember v. Congdon, 55 Vt. 58, 1883 Vt. LEXIS 17 (1883).

Examination of incompetent witness as waiver.

Incompetency to testify under this section may be waived by introducing evidence on and cross-examining the incompetent party on the subject involved. Mislosky v. Wilhelm, 130 Vt. 63, 286 A.2d 267, 1971 Vt. LEXIS 222 (1971).

Waiver of this section’s disqualification can occur because the adverse party calls the disqualified party and inquires about the contract or cause in issue or, in certain circumstances, where the adverse party cross-examines the disqualified party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Where, at hearing before probate court on petition for further accounting, petitioners called executrix as witness and examined her generally as to property of decedent, and also called her as witness in county court and examined her as to her administration of estate, they thereby waived her incompetency to testify as to gifts made to her by decedent. Trask v. Walker's Est., 100 Vt. 51, 134 A. 853, 1926 Vt. LEXIS 121 (1926).

Gifts from deceased.

Claim of a gift, first asserted after death of alleged donor, is to be regarded with suspicion and it is policy of law to receive it with caution requiring clear and convincing proof in its support. Colby's Ex'r v. Poor, 115 Vt. 147, 55 A.2d 605, 1947 Vt. LEXIS 91 (1947).

Daughter of deceased was incompetent to testify as a witness in relation to gifts claimed to have been made to her by deceased, unless question of competency was waived. Trask v. Walker's Est., 100 Vt. 51, 134 A. 853, 1926 Vt. LEXIS 121 (1926).

Where decedent purchased organ for daughter while having some of her money in his hands, she was not a competent witness on question of whether it was a gift. LaMountain v. Miller, 56 Vt. 433, 1884 Vt. LEXIS 63 (1884).

Gifts to deceased.

In a suit to set aside a gift induced by undue influence, donee being dead, donor is not competent witness in his own behalf. Wade v. Pulsifer, 54 Vt. 45, 1881 Vt. LEXIS 72 (1881).

Wife was competent witness to testify to gift to her husband by third person after the death of donor as she was not a party to contract. Pope v. Hogan, 92 Vt. 250, 102 A. 937, 1918 Vt. LEXIS 160 (1918).

—Generally.

Witness testifies “in his own favor” only when he has a present legal interest in contract or cause of action which his testimony will tend to establish. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Judgment creditor and debtor as parties.

In audita querela to set aside judgment for fraud, judgment creditor being dead, judgment debtor was not competent witness. Godfrey v. Downer, 47 Vt. 653 (1875), same case 47 Vt. 599.

—Generally.

“Contract in issue” means same as “contract in dispute” or “in question,” relating as well to substantial issues made by evidence as to merely formal issues made by pleadings. Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

When one party to contract is dead, and contract has been assigned, so that the estate, or heirs, have no interest in it, assignee stands upon this section in all cases where contract is the cause of action, in issue and on trial, and survivor cannot testify—otherwise where contract is matter collateral to cause of action. Farmers' Mut. Fire Ins. Co. v. Wells, 53 Vt. 14, 1880 Vt. LEXIS 84 (1880).

Marriage to deceased.

On appeal from decree of the probate court giving widow all the estate, she was a competent witness to fact of her marriage, since marriage contract was in issue only collaterally. Stevens v. Joyal, 48 Vt. 291, 1876 Vt. LEXIS 21 (1876).

Party claiming title by virtue of marriage to deceased cannot be a witness to prove the marriage. Fitzsimmons v. Southwick, 38 Vt. 509, 1866 Vt. LEXIS 22 (1866).

Matters constituting estoppel.

In action by bank to recover on unpaid note, defendant was competent to testify that third party had agreed to pay note when due, and that bank cashier had falsely represented that note was so paid, since agreement was only incidental to issue of whether bank was estopped. Manufacturers' Bank v. Scofield, 39 Vt. 590, 1867 Vt. LEXIS 45 (1867).

Party not of record.

Party to a contract in issue and on trial, although not a party to record, was not a competent witness to such contract, other party thereto being dead. Davis v. Windsor Sav. Bank, 48 Vt. 532, 1876 Vt. LEXIS 40 (1876).

Terms “other party” referred to other party to original contract or cause of action, and not necessarily to other party to record. Paska v. Saunders, 103 Vt. 204, 153 A. 451 (1930); Hopkins v. Sargent’s Est., 88 Vt. 217, 92 A. 14 (1914), same case 90 Vt. 185, 97 A. 657.

Payee of note where maker deceased.

Maker of note having died, disqualification attached to original payee when called as witness in behalf of his endorsee in an action in which note was contract or cause of action in issue and on trial. Foster v. Estate of King, 73 Vt. 278, 50 A. 1061, 1901 Vt. LEXIS 173 (1901).

Persons disqualified as party.

Restriction applied equally whether surviving party was plaintiff or defendant. Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

Persons interested in outcome of suit as parties.

Fact that person might benefit from litigation did not make him party to contract or cause of action in issue. Wilder’s Ex’r v. Wilder, 82 Vt. 123, 72 A. 203 (1909), same case 75 Vt. 178, 53 A. 1072, 117 A.L.R. 631.

Witness was not disqualified by fact that he might become beneficiary of estate of person who stood to gain by his testimony. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Death of one party to cause of action is issue was ground of excluding the survivor from testifying, and not fact that estate of deceased party had an interest in result of suit. Hollister v. Young, 41 Vt. 156, 1868 Vt. LEXIS 92 (1868).

Purpose.

This section created an exception to the broad common law rule that disqualified interested parties from testifying in their own favor; thus it was intended to allow otherwise inadmissible evidence rather than to create a rule of disqualification. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Main object of this section is to remove and not to create disqualification, and competency is the rule and incompetency the exception. Lawrence v. Werblow, 122 Vt. 374, 173 A.2d 157, 1961 Vt. LEXIS 86 (1961).

Questions for court.

Question of competency or incompetency of a witness is always for court, and when a fact must be decided in determining that question, such fact is for court. Cairns v. Mooney, 62 Vt. 172, 19 A. 225, 1890 Vt. LEXIS 90 (1890).

Competency of witness is preliminary question for court to decide before receiving his testimony; the ruling is subject to review, and may be reversed where it appears from evidence to have been erroneous or founded upon error in law. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Review.

Error cannot be predicated on an answer, even if it contravenes section, which excludes a living party when other party is dead. Lawrence v. Graves' Est., 60 Vt. 657, 15 A. 342, 1888 Vt. LEXIS 197 (1888).

Survivor as witness for adverse party.

One claiming under deceased party to contract or cause of action in issue and on trial may call surviving adverse party as witness, since surviving party is not then a witness in his own favor. Ainsworth v. Stone, 73 Vt. 101, 50 A. 805, 1901 Vt. LEXIS 135 (1901).

—Failure to object.

In an action for a refund of estate taxes, the government waived reliance on the dead man’s statutes when it submitted the deposition of decedent’s son, in which he discussed conversations with the decedent, in support of its contention that the father did not intend to bestow upon his son the power to donate property under a power of attorney. Estate of Smith v. United States, 979 F. Supp. 279, 1997 U.S. Dist. LEXIS 15526 (D. Vt. 1997).

Where no objection was entered in respect to party’s testimony in hearing before commissioner of probate court, the prohibitory mandate of this section is deemed waived by the non-objecting party and the other party is to be allowed to testify on such matters at trial. In re Estate of Boisvert, 135 Vt. 69, 370 A.2d 209, 1977 Vt. LEXIS 557 (1977).

Waiver of this section’s disqualification can occur because the disqualified party is allowed to testify in his own favor to the contract or cause of action in issue without objection by the adverse party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Failure to object in probate court to testimony prohibited by this section will be a waiver of the disqualification for all further proceedings. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Where administrator permitted person having claim against estate to testify in relation thereto before commissioners on estate, without objection, he thereby waived provisions making witness incompetent, and such waiver bound estate in hearing on appeal from commissioners’ decision. Collins v. Estate of Collins, 104 Vt. 506, 162 A. 361, 1932 Vt. LEXIS 173 (1932).

Since the representative of a deceased party may waive the statutory disqualification of this section, either by calling the witness or by permitting the witness to testify, it was error to exclude evidence in a county court action offered to establish such waiver had taken place in a prior probate proceeding. Shearer v. Welch, 126 Vt. 106, 223 A.2d 552, 1966 Vt. LEXIS 172 (1966).

Trover based on contract with deceased.

Where plaintiff sued in trover for property purchased by defendant from administrator of original owner and plaintiff claimed he had bought it of deceased in his lifetime, plaintiff was incompetent as witness, since contract of sale from original owner was in issue. Hall v. Hamblett, 51 Vt. 589, 1879 Vt. LEXIS 130 (1879).

In trover for property which the plaintiff purchased of deceased, of whom the defendant claimed to have subsequently purchased it, plaintiff was a competent witness in his own behalf, to his contract of purchase. Downs v. Belden, 46 Vt. 674, 1874 Vt. LEXIS 49 (1874).

In action of trover for conversion of personal property, where defendant claimed to derive title to it as legate under his father’s will, plaintiff, claiming to have bought it of another party and left it with the testator merely for his use, was competent witness in this respect in his own behalf, since arrangement between plaintiff and deceased was collateral to issue. Walling v. Newton, 59 Vt. 684, 10 A. 827, 1886 Vt. LEXIS 41 (1886).

Witness not incompetent to testify.

Because the widow of a former partner was not a party to the partnership dissolution agreement and because her testimony was not in her favor, the dead man’s statute did not render her incompetent to testify. In re Estate of Maggio, 2012 VT 99, 193 Vt. 1, 71 A.3d 1130, 2012 Vt. LEXIS 96 (2012).

—Failure to object.

In an action for a refund of estate taxes, the government waived reliance on the dead man’s statutes when it submitted the deposition of decedent’s son, in which he discussed conversations with the decedent, in support of its contention that the father did not intend to bestow upon his son the power to donate property under a power of attorney. Estate of Smith v. United States, 979 F. Supp. 279, 1997 U.S. Dist. LEXIS 15526 (D. Vt. 1997).

Where no objection was entered in respect to party’s testimony in hearing before commissioner of probate court, the prohibitory mandate of this section is deemed waived by the non-objecting party and the other party is to be allowed to testify on such matters at trial. In re Estate of Boisvert, 135 Vt. 69, 370 A.2d 209, 1977 Vt. LEXIS 557 (1977).

Waiver of this section’s disqualification can occur because the disqualified party is allowed to testify in his own favor to the contract or cause of action in issue without objection by the adverse party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Failure to object in probate court to testimony prohibited by this section will be a waiver of the disqualification for all further proceedings. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Where administrator permitted person having claim against estate to testify in relation thereto before commissioners on estate, without objection, he thereby waived provisions making witness incompetent, and such waiver bound estate in hearing on appeal from commissioners’ decision. Collins v. Estate of Collins, 104 Vt. 506, 162 A. 361, 1932 Vt. LEXIS 173 (1932).

Since the representative of a deceased party may waive the statutory disqualification of this section, either by calling the witness or by permitting the witness to testify, it was error to exclude evidence in a county court action offered to establish such waiver had taken place in a prior probate proceeding. Shearer v. Welch, 126 Vt. 106, 223 A.2d 552, 1966 Vt. LEXIS 172 (1966).

—Generally.

Status as to insanity and the existence of disqualification is determined as of time testimony sought to be excluded is offered. Taylor's Guardian v. Taylor, 117 Vt. 399, 93 A.2d 102, 1952 Vt. LEXIS 153 (1952).

—Generally.

“Contract in issue” means same as “contract in dispute” or “in question,” relating as well to substantial issues made by evidence as to merely formal issues made by pleadings. Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

When one party to contract is dead, and contract has been assigned, so that the estate, or heirs, have no interest in it, assignee stands upon this section in all cases where contract is the cause of action, in issue and on trial, and survivor cannot testify—otherwise where contract is matter collateral to cause of action. Farmers' Mut. Fire Ins. Co. v. Wells, 53 Vt. 14, 1880 Vt. LEXIS 84 (1880).

—Generally.

Witness testifies “in his own favor” only when he has a present legal interest in contract or cause of action which his testimony will tend to establish. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

II. EXCEPTIONS TO INCOMPETENCY.

Application of section.

Provision “that in actions of book account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made, and no further,” is not confined to cases where the action is, in form, book account, but is applicable in any suit or proceeding where such matter is at issue and on trial. Woodbury v. Woodbury’s Est., 48 Vt. 94 (1875), same case 50 Vt. 152.

Declarations prior to controversy.

Declaration of deceased person regarding boundaries can be received in evidence only if made before a controversy has arisen in respect to such boundaries. Vermont Shopping Center, Inc. v. Pettengill, 125 Vt. 145, 211 A.2d 183, 1965 Vt. LEXIS 214 (1965).

Entries by copy.

Account copied by plaintiff from a daybook was not admissible under section, which allows proof and authentication only of an original book of accounts. Woodbury v. Woodbury’s Est., 50 Vt. 152 (1876), same case 48 Vt. 94.

Entries made by recollection.

A paper in plaintiff’s attorney’s handwriting containing itemized statement of debt and credit form of accounts between plaintiff and intestate made upon direction of plaintiff from his recollections after intestate’s death, was not admissible as a book of original entries, although plaintiff kept no other book. Wyman v. Wilcox’s Est., 66 Vt. 26, 28 A. 321 (1893), same case 63 Vt. 487, 21 A. 1103, 6 A.L.R. 766.

Items of payment.

Book introduced in evidence which plaintiff testified to be a book in which he “kept entries of money paid out”, was not book of account within the meaning of section and item of charge in question was matter of payment, and not a proper matter for charge on book. Parris v. Bellows’s Est., 52 Vt. 351 (1880), same case 53 Vt. 539, 60 Vt. 224, 14 A. 697, 84 A.L.R. 150.

Payment on a note is not a subject for book charge, therefore where the payee was dead and an action was brought on note by his administrator, maker was not a competent witness to authenticate such item of charge on his book. Jewett v. Winship, 42 Vt. 204, 1869 Vt. LEXIS 66 (1869).

Matters proved by entries.

In action against deceased person’s estate, plaintiff’s accounts on book, with proof of handwriting, and when made, were evidence tending to show sale and delivery of goods in dispute. Greene v. Mill's Est., 60 Vt. 440, 14 A. 5, 1888 Vt. LEXIS 166 (1888).

Rebuttal evidence by proponent of will.

After contestants introduced evidence that testatrix had insane delusions concerning conduct of husband with other women, proponents could show in rebuttal what his reputation was in this respect so far as it was known to testatrix. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 A. 253, 1891 Vt. LEXIS 87 (1891).

Proponent who was legatee under will was not incompetent to testify as to conversations with testatrix about matters which were incidental and collateral to issue of validity of will, and which met and explained contestant’s evidence tending to show fraud and undue influence on the part of proponent. In re Healey's Will, 94 Vt. 128, 109 A. 19, 1920 Vt. LEXIS 178 (1920).

—Generally.

Under section which provides when, in case of death or insanity of one party, other may be a witness, a party had same right to testify in actions of book account as in other actions, and in addition, the right to testify to handwriting of his charges and when made. Thrall & Smith v. Seward, 37 Vt. 573, 1865 Vt. LEXIS 32 (1865).

Scope of testimony of surviving witness.

Surviving party in action of book account is competent witness in his own favor, so far as to prove in whose handwriting his charges are, and when made, and no further; he is not competent witness to testify generally in relation to items of his account. Hunter v. Kittredge's Est., 41 Vt. 359, 1868 Vt. LEXIS 127 (1868).

Settlement of account.

Where one of parties to an account died and his administrator brought action on book against other party, latter could not be a competent witness to testify to a settlement with intestate of the account. Johnson v. Dexter, 37 Vt. 641, 1865 Vt. LEXIS 45 (1865).

Sufficiency of records required as independent evidence.

Memoranda of disputed items covering a period of ten years, made on a loose strip of paper, found by administrator in his intestate’s desk, used by him in his dwelling house, without any proof they were original entries, except appearance of paper, or that they were made at or about the time when right to charge first accrued, or that it was intestate’s custom to make charges in like manner, although administrator testified that they were in his handwriting were not admissible, when offered, not to refresh recollection or to corroborate testimony of a witness, but as independent evidence to prove that defendant was indebted to the intestate. Barber v. Bennett, 58 Vt. 476, 4 A. 231 (1886), same case 60 Vt. 662, 15 A. 348, 62 Vt. 50, 19 A. 978, 83 A.L.R. 820, 17 A.L.R.2d 272.

Testimony as to facts taking place before or after death.

Surviving party to contract is competent witness for himself to meet or explain testimony of living witnesses produced against him as to facts taking place before, as well as after, other party’s death. Spencer v. Potter's Est., 85 Vt. 1, 80 A. 821, 1911 Vt. LEXIS 201 (1911).

Testimony taken in open court.

Plaintiff having deceased, his administrator having entered to prosecute the suit, and on hearing before a referee, testimony which plaintiff had given on a former trial having been reproduced by witnesses who testified from “recollection solely,” defendant was not witness in his own behalf as to what deceased party testified to or as to reproduced testimony. Blair v. Ellsworth, 55 Vt. 415, 1883 Vt. LEXIS 57 (1883).

—Generally.

Party to contract or cause of action in issue and on trial, other party to which was dead, was competent to testify not alone to meet and explain testimony of living witness produced against him but also any legitimate influence deducible therefrom. In re Bugbee's Will, 92 Vt. 175, 102 A. 484, 1917 Vt. LEXIS 309 (1917); Paska v. Saunders, 103 Vt. 204, 153 A. 451, 1931 Vt. LEXIS 159 (1931).

A surviving party to a transaction with another party who is dead may testify pursuant to this section and § 1603 of this title with respect to a living witness produced against him to meet and explain the testimony of such person and any legitimate inference deducible therefrom. Smith v. Lentini, 125 Vt. 526, 220 A.2d 291, 1966 Vt. LEXIS 224 (1966).

Plaintiff claiming damages after being struck by car driven by defendant’s testatrix, who died before trial, was not competent to testify as to his freedom from contributory negligence where no witnesses were produced against him on the issue. Pritchard v. Nelson, 228 F.2d 878, 1955 U.S. App. LEXIS 3720 (2d Cir. 1955).

—Generally.

Under section which provides when, in case of death or insanity of one party, other may be a witness, a party had same right to testify in actions of book account as in other actions, and in addition, the right to testify to handwriting of his charges and when made. Thrall & Smith v. Seward, 37 Vt. 573, 1865 Vt. LEXIS 32 (1865).

III. GENERALLY.

Tort actions.

This section could not be applied to tort action. Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086, 1989 Vt. LEXIS 243 (1989).

Cited.

Cited in In re Estate of Hogg, 147 Vt. 101, 510 A.2d 1323, 1986 Vt. LEXIS 366 (1986), Gallagher v. McCarthy, 148 Vt. 258, 532 A.2d 557, 1987 Vt. LEXIS 501 (1987); In re Estate of Elliott, 149 Vt. 248, 542 A.2d 282, 1988 Vt. LEXIS 14 (1988).

Actions between administrators.

Where both parties to contract in issue were dead and plaintiff and defendant were their administrators, neither representative was incompetent as a witness. Atkins' Est. v. Atkins' Est., 69 Vt. 270, 37 A. 746, 1896 Vt. LEXIS 52 (1896).

Cestui que trust as party.

Where a mere naked technical trustee sues as such, his cestui que trustent are treated as real plaintiffs, and so where such trustee, as such, sued a decedent’s estate his cestui que trustent were “the other party” to the record within the meaning of section, and each cestui que trust was disqualified to testify either for himself or for other. Hopkins v. Sargent’s Est., 88 Vt. 217, 92 A. 14 (1914), same case 90 Vt. 185, 97 A. 657.

Construction.

This section must be construed in favor of the challenged witness. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Contract in issue.

Words “contract in issue” relate to issues made by evidence, as well as to those made in pleadings; and where, in an action by an administrator against a physician for malpractice on plaintiff’s intestate, declaration alleged that intestate employed defendant to treat her, but it appeared that plaintiff himself made contract, defendant could testify to contract, but was not a competent witness generally, for purpose of statute is to preserve equality of testimonial competency, beyond which exception does not go, nor exclusion of statute operate. Smith v. Stannard, 81 Vt. 319, 70 A. 568 (1908), same case 79 Vt. 57, 64 A. 232, 67 A.L.R. 39.

In an action by administrator to recover value of a note, defendant was not a witness in his own behalf to prove that note had been given to him by intestate. Rooney v. Minor, 56 Vt. 527, 1884 Vt. LEXIS 86 (1884).

Contracts with persons living.

Where an action was brought by administrator as such, defendant was competent witness to contract in issue in such suit made with person living and competent to testify. Hollister v. Young, 42 Vt. 403, 1869 Vt. LEXIS 95 (1869).

Events after death.

Where husband and wife, sellers of partnership, died prior to full payment of purchase price, court, in buyer’s action against husband seller’s executor, in which buyer claimed husband had orally promised buyer the partnership free and clear should sellers die before full payment, correctly applied this section that when an executor is a party the other party cannot testify in his own favor regarding a contract in issue unless the contract was made with one who is living and competent to testify. White v. Hubbard, 131 Vt. 423, 306 A.2d 707, 1973 Vt. LEXIS 327 (1973).

In an action of trover by administrator defendants were disqualified as witnesses as to what had occurred before appointment of plaintiff as administrator, except to explain facts and circumstances which took place after death of intestate. Melendy v. Spaulding, 54 Vt. 517 (1881).

Foreclosure, defendant as witness.

In a petition for foreclosure brought by an administrator, the defendant was not a competent witness to prove declarations of decedent. Haskell's Adm'r v. Holt, 75 Vt. 413, 56 A. 99, 1903 Vt. LEXIS 150 (1903).

Purpose.

This section created an exception to the broad common law rule that disqualified interested parties from testifying in their own favor; thus it was intended to allow otherwise inadmissible evidence rather than to create a rule of disqualification. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Design of this section is to exclude a party from testifying when other party to contract in issue and on trial is dead, and when in action such deceased party is represented by an executor or administrator, and it contemplates a suit or proceeding, determination of which may affect estate of deceased party. Cole v. Shurtleff, 41 Vt. 311, 1868 Vt. LEXIS 118 (1868); Abbott v. Choate, 47 Vt. 53, 1874 Vt. LEXIS 76 (1874).

Testimony by administrators or executors.

Trial court erred under the dead man’s statute concerning cases where an executor or administrator was a party in excluding testimony by co-administrators. Although they were the decedent’s heirs, neither of them was a party to the alleged oral contracts between the decedent and the homeowners in a subdivision he developed, nor could their testimony regarding the decedent’s promises to dedicate the infrastructure to the town upon completion of the subdivision and to maintain the subdivision roads until that time be considered testimony in their favor. Hayes v. Town of Manchester Water & Sewer Bds., 2014 VT 126, 198 Vt. 92, 112 A.3d 742, 2014 Vt. LEXIS 131 (2014).

Testimony to meet or explain.

Trial court erred under the dead man’s statute concerning cases where an executor or administrator was a party in excluding testimony offered by homeowners about the decedent’s statements to them, because once the co-administrators broached the subject of promises made to the homeowners, the homeowners had the right to meet or explain the nature and extent of those promises. Hayes v. Town of Manchester Water & Sewer Bds., 2014 VT 126, 198 Vt. 92, 112 A.3d 742, 2014 Vt. LEXIS 131 (2014).

A surviving party to a transaction with another party who is dead may testify pursuant to this section and § 1602 of this title with respect to a living witness produced against him to meet and explain the testimony of such person and any legitimate inference deducible therefrom. Smith v. Lentini, 125 Vt. 526, 220 A.2d 291, 1966 Vt. LEXIS 224 (1966).

In action against administrator, plaintiff had no right under section to meet or explain adverse testimony of his own witness, since witness was not produced against plaintiff. McPherson v. Dow, 117 Vt. 506, 96 A.2d 649, 1953 Vt. LEXIS 124 (1953).

Plaintiff was not confined to mere denial, but could testify to such affirmative facts as had a tendency to meet and destroy adverse testimony and any legitimate inferences deducible therefrom. Burke v. Powers' Est., 100 Vt. 342, 137 A. 202, 1927 Vt. LEXIS 160 (1927); In re Bugbee's Will, 92 Vt. 175, 102 A. 484, 1917 Vt. LEXIS 309 (1917); Gilfillan v. Gilfillan's Est., 90 Vt. 94, 96 A. 704, 1916 Vt. LEXIS 244 (1916).

Tort actions.

This section is expressly inapplicable to tort actions. Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086, 1989 Vt. LEXIS 243 (1989).

Transactions after probate of will.

Where defendant, debtor of an estate, paid part of debt to one of the executors, he could, in a suit for balance, testify that executor had agreed to accept amount in full satisfaction of debt, even though the executor had died. Dawson v. Wait, 41 Vt. 626, 1869 Vt. LEXIS 17 (1869).

Waiver.

In an action for a refund of estate taxes, the government waived reliance on the dead man’s statutes when it submitted the deposition of decedent’s son, in which he discussed conversations with the decedent, in support of its contention that the father did not intend to bestow upon his son the power to donate property under a power of attorney. Estate of Smith v. United States, 979 F. Supp. 279, 1997 U.S. Dist. LEXIS 15526 (D. Vt. 1997).

Where the beneficiary of this section’s disqualification acts inconsistently with the disqualification, the disqualification is waived. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Waiver of this section’s disqualification can occur because the disqualified party is allowed to testify in his own favor to the contract or cause of action in issue without objection by the adverse party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Failure to object in probate court to testimony prohibited by this section will be a waiver of the disqualification for all further proceedings. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

Waiver of this section’s disqualification can occur because the adverse party calls the disqualified party and inquires about the contract or cause in issue or, in certain circumstances, where the adverse party cross-examines the disqualified party. In re Estate of Farr, 150 Vt. 196, 552 A.2d 387, 1988 Vt. LEXIS 142 (1988).

In general assumpsit by administrator for money received by defendant from intestate, plaintiff, by calling defendant as a witness and examining him, waived his statutory incompetency and made him competent as a general witness in the case notwithstanding this section. Comstock’s Adm’r v. Jacobs, 84 Vt. 277, 78 A. 1017 (1911), same case 86 Vt. 182, 84 A. 568, 89 Vt. 133, 94 A. 497, 89 Vt. 510, 96 A. 4, 64 A.L.R. 1150, 1168, 1180.

Where executor or administrator, without objection, allowed claimant to testify in his own favor, provisions of section were thereby waived, and such claimant made a competent witness in his own favor not only there, but subsequently in county court on appeal. Cowles v. Cowles' Est., 81 Vt. 498, 71 A. 191, 1908 Vt. LEXIS 170 (1908).

Cited.

Cited in In re Estate of Elliott, 149 Vt. 248, 542 A.2d 282, 1988 Vt. LEXIS 14 (1988); Foucher v. First Vermont Bank & Trust Co., 821 F. Supp. 916, 1993 U.S. Dist. LEXIS 7611 (D. Vt. 1993).

Generally.

The court’s ability to value property in a divorce action is limited by the evidence put on by the parties and the credibility of that evidence. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Tenant, as owner of new auto damaged when defective tree on premises rented by plaintiff fell on it, was competent to testify to its value in suit against landlord based on breach of covenant to repair. Keene v. Willis, 128 Vt. 187, 260 A.2d 371, 1969 Vt. LEXIS 223 (1969).

Basis of testimony.

Town failed in its contention that the State Housing Authority should have been required to produce an appraisal performed by a third party to rebut the listers’ valuation of subsidized housing properties. The authority’s director of property and asset management testified as to her belief of the appraised value, offered evidence to support her opinion, and during that testimony, the appraiser had ample opportunity to evaluate the director’s knowledge of the properties in issue and to make a judgment about her credibility. These are both determinations within the discretion of the hearing officer. Therefore, no error could be found in the appraiser’s decision to allow the director to testify as to the value of the properties. State Housing Authority v. Town of Northfield, 2007 VT 63, 182 Vt. 90, 933 A.2d 700, 2007 Vt. LEXIS 155 (2007).

Wife could testify in divorce action to value of property she owned with husband, even though her testimony relied significantly on inadmissible appraisals made more than a year before. Albarelli v. Albarelli, 152 Vt. 46, 564 A.2d 598, 1989 Vt. LEXIS 128 (1989).

Business property.

A designated representative of a corporation is qualified to testify under this section as to the value of corporate property once he has been shown to have a thorough familiarity with that property. O'Bryan Const. Co., Inc. v. Boise Cascade Corp., 139 Vt. 81, 424 A.2d 244, 1980 Vt. LEXIS 1504 (1980).

President and sole stockholder of construction firm, with many years of experience with building plans, who was entirely familiar with a certain set of plans and with the day-to-day operation of the firm, was qualified to testify as to the value of the plans under this section. O'Bryan Const. Co., Inc. v. Boise Cascade Corp., 139 Vt. 81, 424 A.2d 244, 1980 Vt. LEXIS 1504 (1980).

Condemnation proceeding.

Where owner testified that he had received offers for his property before and after the taking, but did not testify that his opinion as to decreased value was based on such offers, it was not error for the trial court to deny defendant’s motion to strike the plaintiff’s estimate of damages. Bissonnette v. State Highway Board, 124 Vt. 424, 207 A.2d 151, 1965 Vt. LEXIS 264 (1965).

Testimony by owner as to decreased value of condemned land where such testimony was based on “between the loss now and what it was before” was proper under this section. Bissonnette v. State Highway Board, 124 Vt. 424, 207 A.2d 151, 1965 Vt. LEXIS 264 (1965).

Property owner was a competent witness to testify as to the value of his land. Harlow v. State Highway Board, 123 Vt. 446, 193 A.2d 925, 1963 Vt. LEXIS 114 (1963).

Owner of land condemned for highway purposes was a competent witness to testify as to value of his own land. Colson v. State Highway Board, 122 Vt. 392, 173 A.2d 849, 1961 Vt. LEXIS 89 (1961).

Cross-examination.

In action for damages resulting from condemnation of land, restriction of cross-examination of the owner relative to the value which he places on the land is error. Harlow v. State Highway Board, 123 Vt. 446, 193 A.2d 925, 1963 Vt. LEXIS 114 (1963).

Property damage.

Person who became owner of tenement house after damage was caused by frozen water pipes brought on by termination of electrical service without notice to prior owner was competent to testify to damage he observed and his opinion of cost of repairs, in prior owner’s suit in tort against utility company. Shortle v. Central Vt. Pub. Svc. Corp., 137 Vt. 32, 399 A.2d 517, 1979 Vt. LEXIS 932 (1979).

Relevancy.

Evidence given by landowners as to probable impact of an operating landfill was properly received under this section; however, evidence of transfers of land at assertedly increased prices was of such dubious relevance, particularly since it did not deal with general inflation of property values and assumed a knowledge of the prospective landfill, that it was properly within the discretion of the Superior Court to exclude it in de novo proceeding upon appeal from denial of conditional use permit for operation of landfill. In re Patch, 140 Vt. 158, 437 A.2d 121, 1981 Vt. LEXIS 597 (1981).

Rental value.

This section does not render an owner competent to testify as to rental value of property. Abbadessa v. Tegu, 123 Vt. 183, 187 A.2d 56, 1962 Vt. LEXIS 220 (1962).

Testimony on value.

Chapter 7 debtors were entitled to avoid a creditor’s lien under 11 U.S.C.S. § 522(f) because their claim of a homestead exemption was not improper despite the fact that they only lived on the property during summers. The creditor failed to meet its burden of rebutting the debtors’ intent to maintain the property as their homestead under Fed. R. Bankr. P. 4003(c), and it also failed to rebut the reliability or soundness of the debtor’s valuation of the property under 12 V.S.A. § 1604 . In re Belding, 2010 Bankr. LEXIS 4968 (Bankr. D. Vt. Dec. 23, 2010).

Deer were personal property; thus, their owner could testify to their value for purposes of restitution. Moreover, the trial court had not accepted the owner’s valuation, but had reduced it, because the trial court found that the owner failed to prove that these particular deer would be taken to a game preserve for hunting. State v. Driscoll, 2008 VT 101, 184 Vt. 381, 964 A.2d 1172, 2008 Vt. LEXIS 90 (2008).

The trial court was entitled to rely on the property owner’s testimony as to the replacement value of the two shade trees plaintiffs cut down in calculating damages. Pion v. Bean, 2003 VT 79, 176 Vt. 1, 833 A.2d 1248, 2003 Vt. LEXIS 160 (2003).

Value of business.

Once the proprietor of a business is shown to be familiar with his property and has some understanding of its value, he will be permitted to estimate its worth, leaving the weight to be given his opinion to the jury. Fiske v. State Highway Board, 124 Vt. 87, 197 A.2d 790, 1964 Vt. LEXIS 64 (1964).

Weight of evidence.

The owner of real property is competent to testify concerning its value, and the weight to be assigned such testimony is a matter for the trier of fact. Crabbe v. Veve Associates, 150 Vt. 53, 549 A.2d 1045, 1988 Vt. LEXIS 123 (1988).

Where trial court in divorce action ordered a division of parties’ real estate based on the wife’s estimated valuation of the property, since there was no evidence of any outside appraisal of the property, the court was limited to the parties’ valuation, and it was fully within its discretion to choose the wife’s estimate. Wood v. Wood, 143 Vt. 113, 465 A.2d 250, 1983 Vt. LEXIS 495 (1983).

A property owner is competent to testify as to the value of his property, and the weight to be given his testimony is a matter for the trier of fact. Jackson v. Jackson, 139 Vt. 548, 432 A.2d 1181, 1981 Vt. LEXIS 525 (1981); Wood v. Wood, 143 Vt. 113, 465 A.2d 250, 1983 Vt. LEXIS 495 (1983).

Owner of property was a competent witness to testify concerning its value, and weight to be given his opinion was a matter for the trier of fact. Shortle v. Central Vt. Pub. Serv. Corp., 134 Vt. 486, 365 A.2d 256, 1976 Vt. LEXIS 709 (1976).

Cited.

Cited in DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986); A. Brown, Inc. v. Vermont Justin Corp., 148 Vt. 192, 531 A.2d 899, 1987 Vt. LEXIS 473 (1987); Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988); Johnson v. Johnson, 158 Vt. 160, 605 A.2d 857, 1992 Vt. LEXIS 32 (1992).

Conversation with spouse or other person.

In action to recover possession of house, where defense was that defendant was trying to effect a settlement and was to vacate when settlement was made, evidence by defendant’s wife that she heard him say that he was willing to move if he could get a satisfactory settlement was not within provision forbidding a wife to testify against her husband as to any conversation had by him with her or with another person. Mead v. Owen, 80 Vt. 273, 67 A. 722 (1907), same case 83 Vt. 132, 74 A. 1058.

Cross-examination to impeach witness.

Where respondent’s wife had testified that liquid found on his premises was for purpose of making vinegar, and that there was no intent or purpose to use it as a beverage, cross-examination as to whether she had not made statement to officer making seizure that in these times when a person could not get beer or wine they had to have something, was not objectionable and was properly admitted for purposes of impeachment. State v. Watson, 99 Vt. 473, 134 A. 585, 1926 Vt. LEXIS 163 (1926).

Divorce.

In action for divorce against husband, where evidence showed that libelant had given birth to a child which, as part of his defense, libelee claimed was illegitimate, testimony of libelee that during year he did not have sexual intercourse with libelant or opportunity therefor was admissible. Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, 264 A.2d 1, 1970 Me. LEXIS 248 (Me. 1970).

Marital confidences.

In a prosecution for adultery, testimony of respondent’s wife that they were married at a designated time and place was sufficient to prove their marriage, and that testimony would not lead to a violation of “marital confidence.” State v. Nieburg, 86 Vt. 392, 85 A. 769, 1913 Vt. LEXIS 206 (1913).

The “court” referred to in this section is the trial court, and exercise of its judgment in that regard is not ordinarily reviewable. State v. Nieburg, 86 Vt. 392, 85 A. 769, 1913 Vt. LEXIS 206 (1913).

Conversations between husband and wife in presence of witnesses in respect to their respective interests in certain real estate were not confidential. In re Buckman's Will, 64 Vt. 313, 24 A. 252, 1892 Vt. LEXIS 42 (1892).

Purpose.

Section makes spouses exactly as competent witnesses for or against each other as are other witnesses, except as to communications with each other, or where, in opinion of court, their testimony would be a violation of marital confidence. State v. Muzzy, 87 Vt. 267, 88 A. 895, 1913 Vt. LEXIS 199 (1913).

Removal of incompetency as ground for new trial.

Fact that former wife of person convicted of crime had procured a divorce from him since his conviction, and had thus become a competent and important witness, afforded him no basis for petition for new trial on ground of newly discovered evidence. State v. Sargood, 80 Vt. 412, 68 A. 51 (1907), same case 77 Vt. 80, 58 A. 971, 65 Harv. L. Rev. 875.

Review.

Under section, neither husband nor wife shall be allowed to testify against other as to a statement, conversation, letter or other communication made to the other or to another person, and allowance of such testimony by trial court, after objection, was error. State v. Ball, 119 Vt. 306, 126 A.2d 121, 1956 Vt. LEXIS 112 (1956).

Cited.

Cited in State v. Wright, 154 Vt. 512, 581 A.2d 720, 1989 Vt. LEXIS 280 (1989).

Burglary.

Burglary is malum in se and as such involves moral turpitude as a matter of law. State v. Manning, 136 Vt. 436, 392 A.2d 409, 1978 Vt. LEXIS 770 (1978).

Conspiracy.

13 V.S.A. § 2907 , similar to this section, did not prevent witness with federal court conviction of conspiracy to commit perjury from testifying against defendant charged with arson. State v. Polidor, 130 Vt. 34, 285 A.2d 770, 1971 Vt. LEXIS 218 (1971).

Construction and application.

In determining whether the probative value of evidence of a witness’ prior convictions is outweighed by its prejudicial effect, the trial court must consider: (1) the nature of the impeaching crime; (2) the length of the defendant’s criminal record; (3) the remoteness in time of the convictions; (4) the relative importance of the defendant’s testimony; and (5) the need for impeachment in the particular case. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

In the case of defendant convicted of breaking and entering in the daytime, where trial court ruled that evidence of his prior convictions involving moral turpitude were admissible, since it was apparent from the transcript below that the court did not give adequate consideration to factors laid down in State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981), governing admissibility of evidence of prior convictions to impeach the credibility of a witness, except whether each of the convictions involved falsehood, reversal was required and the cause would be remanded. State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983).

This section establishes the outer boundary of admissibility, limiting admission to crimes involving moral turpitude for which conviction occurred within 15 years and removing from trial court all discretion to admit crimes not meeting the prescribed conditions; however, this section does not require that crimes that meet the prescribed conditions always be admitted and does not allow the use of prior convictions to impeach a witness as a matter of right. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

In exercising its discretion in allowing impeachment of a witness by prior convictions, the trial court may consider a number of factors: the nature of the proceeding; the nature of the crime to be used for impeachment; the length of the defendant’s criminal record; the length of time that has passed since the conviction; and the relative importance of the defendant’s testimony and the need for impeachment by prior conviction in the case. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

Discretion of court.

Requirements that a conviction admitted in evidence to impeach credibility of a witness have occurred within fifteen years and involve moral turpitude merely establish the outer limit to admissibility, within which trial court must exercise its discretion, by weighing the probative value of the evidence against its prejudicial effect. State v. Goodrich, 151 Vt. 367, 564 A.2d 1346, 1989 Vt. LEXIS 137 (1989).

Cross-examination concerning prior convictions in order to discredit a witness is limited to convictions of crimes involving moral turpitude within fifteen years and is subject to the discretion of the trial court. Barrett v. Adirondack Bottled Gas Corp., 145 Vt. 287, 487 A.2d 1074, 1984 Vt. LEXIS 592 (1984).

In exercising its discretion concerning cross-examination concerning prior convictions in order to discredit a witness, the court may consider a number of factors in balancing the prejudicial effects of the evidence against its probative value. Barrett v. Adirondack Bottled Gas Corp., 145 Vt. 287, 487 A.2d 1074, 1984 Vt. LEXIS 592 (1984).

The admission of prior convictions to test the credibility of a witness is subject to the discretion of the trial court, which must determine whether the probative value of such evidence is outweighed by its prejudicial effect. State v. DeJoinville, 145 Vt. 603, 496 A.2d 173, 1985 Vt. LEXIS 331 (1985).

At defendant’s trial for sexual assault of his eleven-year-old daughter, trial court did not abuse its discretion in permitting defendant to be impeached with a prior conviction for welfare fraud, since the outcome of the case hinged largely on the credibility of two of the witnesses involved. State v. DeJoinville, 145 Vt. 603, 496 A.2d 173, 1985 Vt. LEXIS 331 (1985).

Cross-examination of a witness concerning prior convictions is subject to the discretion of the trial court. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Trial court has discretion in deciding whether to permit impeachment of a witness’ credibility by use of prior convictions involving moral turpitude. State v. Ritchie, 144 Vt. 121, 473 A.2d 1164, 1984 Vt. LEXIS 418 (1984).

Impeachment of a witness under this section is not a matter of right, but is subject to the trial court’s discretion. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

In the case of defendant convicted of breaking and entering in the daytime where trial court ruled that evidence of defendant’s prior convictions for petty larceny, receiving stolen property and breaking and entering in the daytime were admissible, since the court found that circumstances surrounding defendant’s participation in those crimes and the fact that they occurred closely in time to the crime charged indicated a strong disposition for dishonesty, and concluded that their bearing on veracity, when joined with the fact that they constituted the only substantial means of impeachment available to the state, outweighed the risk of prejudice to defendant, the court had a reasonable basis for its ruling and did not abuse its discretion. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

In the case of defendant convicted of assault and robbery, trial court did not abuse its discretion when it allowed defendant’s prior petit larceny record to be placed in evidence for impeachment purposes, since the case had narrowed to the credibility of defendant and a prosecution’s witness had been exposed. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Trial court’s ruling on admissibility of prior convictions to impeach the credibility of a witness is a discretionary one, to be made in light of all the relevant circumstances, no one of which is in itself governing. State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983).

Cross-examination of a witness concerning prior convictions is subject to the discretion of the trial court; prior decision in State v. Manning, 136 Vt. 436, 392 A.2d 409 (1978), interpreting this section, and holding that a witness may be impeached by cross-examination concerning any prior convictions for crimes involving moral turpitude within 15 years and that trial court has no discretion to exclude this form of impeachment, was incorrect. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

Drunk driving.

Since drunken driving convictions are not convictions of crimes involving moral turpitude, their admissibility for impeachment purposes is prohibited. State v. Bushey, 142 Vt. 507, 457 A.2d 279, 1983 Vt. LEXIS 413 (1983).

Where at defendant’s trial for driving under the influence of intoxicating liquor, the prosecutor elicited testimony as to defendant’s two prior convictions of that offense after the trial court had sustained defense counsel’s objection to that line of questioning, reversal of defendant’s conviction was required. State v. Bushey, 142 Vt. 507, 457 A.2d 279, 1983 Vt. LEXIS 413 (1983).

Where testimony admitted over objection as to defendant’s prior arrests for driving while intoxicated showed only a general tendency to commit the offense of operating vehicle under influence of intoxicating liquor and did not involve moral turpitude, such testimony was not admissible under this section to affect credibility in later proceeding, even had it been offered for that purpose and proved by records of conviction. State v. Batchelor, 135 Vt. 366, 376 A.2d 737, 1977 Vt. LEXIS 630 (1977).

Questions asked plaintiff by defendant’s attorney in action for damages plaintiff sustained while a passenger in auto involved in head-on collision with auto driven by defendant, as to whether plaintiff drank frequently, had problems with drinking too much and had twice lost his license for D.W.I., were wholly unrelated and immaterial to the case, indicated an undeniable attempt to characterize plaintiff as having a serious drinking problem and thus put him in bad repute with the jury, the question as to the D.W.I. convictions, answered in the affirmative, was highly improper and prejudicial and could only have generated prejudice in the jurors’ minds, and error required reversal of verdict for defendants and the grant of a new trial. McBrine v. Fraser, 128 Vt. 514, 266 A.2d 809, 1970 Vt. LEXIS 264 (1970).

Evidence.

Under this section, after the court has found that the crimes involved moral turpitude, it must then weigh the probative value of the evidence against its prejudicial effect. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

During impeachment by prior conviction the number of counts may be shown, since if the fact of conviction on one count has probative value on credibility, so conviction on more than one count has similar value without unfairness. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Probative value of evidence of prior convictions to impeach credibility must be weighed against the chilling effect on the right of a criminal defendant to testify under 13 V.S.A. § 6601 . State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983).

Evidence which is admissible under this section may, nevertheless, be excluded if it is prejudicial or because of delay, waste of time or cumulative effect. State v. Gardner, 139 Vt. 456, 433 A.2d 249, 1981 Vt. LEXIS 555 (1981).

Where witness was asked by State’s Attorney whether she had been convicted of burglary and gave no direct answer, it was improper for state’s attorney to later ask if witness had served time in women’s reformatory, and it was error to receive answer that she had, but not for burglary; but the error was cured by substantial compliance with this section consisting of the introduction, later in the trial, or copies of the record of conviction which were certified by the Commissioner of Public Safety and the Director of Public Records. State v. Miner, 128 Vt. 55, 258 A.2d 815, 1969 Vt. LEXIS 202 (1969).

Proper and timely objections to questions regarding parole of the respondent as a result of conviction for breaking and entering, and his possible violations of parole, an admission of such questions would have been in error; such questions could not have been asked to impeach the character of the respondent because only he could have introduced that issue; nor was such evidence admissible under this section as affecting the credibility of a witness. State v. Ladabouche, 127 Vt. 171, 243 A.2d 769, 1968 Vt. LEXIS 195 (1968).

To attack credibility of witness under this section, it is not necessary to produce the record of conviction but conviction may be shown by the party himself on cross-examination, or through independent evidence. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

However, at the same time this section makes it a matter of legal right to attack the credibility of a witness by showing through independent evidence he has been convicted of a crime involving moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Mistrial.

At trial for breach of contract a question by defendant’s attorney concerning a prior conviction of plaintiff required a mistrial, notwithstanding plaintiff’s failure to move for a mistrial at the time the incident occurred, since the prejudice caused by the question was of such a magnitude as to be irreparable by any curative instruction the court might have given. Barrett v. Adirondack Bottled Gas Corp., 145 Vt. 287, 487 A.2d 1074, 1984 Vt. LEXIS 592 (1984).

Moral turpitude.

Larceny is a crime of moral turpitude because it is inherently base, and if committed within fifteen years, it is admissible for impeachment purposes, subject to the trial court’s discretion. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Where defendant was charged with breaking and entering in the daytime, trial court did not abuse its discretion in ruling that his prior conviction for receiving stolen property involved moral turpitude and, therefore, was admissible for impeachment purposes, since the element of wrongful intent to take and keep the property of another was sufficient to make the crime inherently base. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

Conviction of income tax evasion under the federal statutes may, or may not, be a crime involving moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Only where the method of tax evasion charged in the indictment necessarily involves fraud, is a conviction on a plea of guilty or nolo contendere conclusive as to fraud or moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Trial court has no discretionary power to receive evidence of criminal conviction for offense other than that involving moral turpitude, to attack credibility of witness, but court must rule whether as matter of law the crime involves moral turpitude. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Crime involving moral turpitude must be based on conduct which is not only socially undesirable but which is, by its nature, base or depraved. State v. Fournier, 123 Vt. 439, 193 A.2d 924, 1963 Vt. LEXIS 439 (1963); Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Offense of drunken driving does not involve moral turpitude. State v. Fournier, 123 Vt. 439, 193 A.2d 924, 1963 Vt. LEXIS 439 (1963).

This section as amended removed discretionary power of trial court to receive evidence of a criminal conviction for an offense other than that involving moral turpitude on the subject of the credibility of a witness. State v. Russ, 122 Vt. 236, 167 A.2d 528, 1961 Vt. LEXIS 62 (1961).

Fact that witness had several times been convicted on plea of guilty of crimes of stealing and obtaining money under false pretenses involved moral turpitude and affected witness’s credibility and was properly admitted in evidence under objection of immateriality. State v. Guyer, 91 Vt. 290, 100 A. 113, 1917 Vt. LEXIS 246 (1917).

Purpose.

The purpose of this section is to remove a common law disability or incompetency. Pond v. Carter, 126 Vt. 299, 229 A.2d 248, 1967 Vt. LEXIS 189 (1967).

Review.

Supreme Court can assume compliance with criteria set forth in State v. Gardner , 139 Vt. 456, 433 A.2d 2449 (1981), for consideration by trial courts in evaluating the quality and necessity of evidence relating to prior convictions unless the contrary is clear from the record. State v. Foy, 144 Vt. 109, 475 A.2d 219, 1984 Vt. LEXIS 419 (1984).

Time of conviction.

Under this section evidence of a crime involving moral turpitude may be received in evidence to affect the creditability of a witness if the conviction occurred within 15 years. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

Type of offense.

Where respondent was asked whether he had ever been convicted of a felony, without limitation as to the type of offense or as to time, the question was properly excluded under this section. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

Use.

A prosecutor must not affirmatively and deliberately use prior convictions as evidence of guilt of the crime charged. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

The test for determining whether prosecutor used prior convictions as evidence of guilt of the crime charged is whether the reference to the defendant’s prior convictions during his cross-examination can be intended only to suggest to the jury that defendant is guilty of the crime charged because of his previous conviction or convictions. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Evidence of prior convictions is not admissible for the purpose of showing that a defendant in a criminal case is the type of person who would do such a thing. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Where prosecutor who cross-examined defendant at his trial for assault and robbery began with general questions, narrowed his focus to the activities on the night in question and following defendant’s denial that he had been present at the crime introduced evidence of defendant’s prior larceny convictions, since a witness for the state had placed defendant at the scene and defendant had denied his presence there, defendant’s credibility was directly at issue and the prior crimes were not introduced to prove that he was the type of person who would do such a thing. State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984).

Cited.

Cited in State v. Savo, 141 Vt. 203, 446 A.2d 786, 1982 Vt. LEXIS 499 (1982); State v. Shattuck, 141 Vt. 523, 450 A.2d 1122, 1982 Vt. LEXIS 572 (1982); State v. Covell, 146 Vt. 338, 503 A.2d 542, 1985 Vt. LEXIS 439 (1985); State v. Trask, 148 Vt. 385, 533 A.2d 1185, 1987 Vt. LEXIS 517 (1987); State v. Hurley, 150 Vt. 165, 552 A.2d 382, 1988 Vt. LEXIS 149 (1988).

Application of privilege.

Where prescribers of controlled drugs disclosed information regarding issuance of prescriptions, error in disclosing privileged information, if any, was harmless; at time of prescribers’ disclosures, trooper already had in his possession prescriptions indicating probable violations of statute prohibiting the obtaining or attempting to obtain a regulated drug by fraud or deceit and trooper sought merely to verify that the prescriptions had indeed been written by each prescriber; and elicited from them the opinion that had they been aware of a concurrent prescription from another prescriber, their own prescribing decisions would have been affected. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Information which defendant disclosed to his daughter to his daughter’s psychologist was not protected by subsection (a) of this section, since defendant was not a patient of the psychologist, they spoke only once, and to the extent that they discussed personal and confidential matters, the purpose and impetus was to help the psychologist understand the daughter’s situation. State v. Parker, 149 Vt. 393, 545 A.2d 512, 1988 Vt. LEXIS 33 (1988).

Burden of proof.

Defendant claiming physician-patient privilege has the burden of proving that the privilege existed between the witness and himself and that the communication sought to be protected was privileged. State v. Tatro, 161 Vt. 182, 635 A.2d 1204, 1993 Vt. LEXIS 102 (1993).

Appellants who claimed that court erred in admitting testimony in violation of this section had burden of proving first, that the privilege existed, and second, that the material sought to be protected was in fact privileged. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Construction with other laws.

Court which transferred legal custody and guardianship of two children to the Commissioner of Social and Rehabilitation Services did not err in admitting testimony of the mother’s mental health services counselor in violation of this section, since at the time of the hearings at which the counselor testified, this section did not include mental health professionals and amendment to this section, under which the information would have been privileged, could not, pursuant to 1 V.S.A. § 214 , governing effect of amendments, be applied retroactively. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Under 1 V.S.A. § 213 providing that acts of the General Assembly, except, among others, those relating to the competency of witnesses, shall not affect a suit begun or pending at the time of their passage, this section granting a patient a privilege with respect to any information a doctor or nurse acquires in attending the patient which was necessary to enable the doctor or nurse to act in a professional capacity applies to all actions, whether commenced before or after the effective date of the privilege statute. Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976).

Deceased patient.

Trial court properly declined to admit homicide victim’s medical records concerning an alleged pregnancy and abortion where court concluded after in camera review that the records would be marginally probative, at best, on issue of state of mind of victim’s boyfriend whom defense presented as victim’s killer, and were merely cumulative. State v. Wright, 154 Vt. 512, 581 A.2d 720, 1989 Vt. LEXIS 280 (1989), cert. denied, 498 U.S. 1032, 111 S. Ct. 692, 112 L. Ed. 2d 682, 1991 U.S. LEXIS 27 (1991).

Nonprofessional observations.

Court which transferred legal custody and guardianship of two children to the Commissioner of Social and Rehabilitation Services did not err in admitting testimony by the children’s psychologist as to the mother’s psychological condition in violation of this section where the psychologist was not the mother’s treating physician, his opinions were not based on his prior treatment of the mother nor on information from other professionals who were treating the mother and in each instance where the psychologist’s opinion was elicited by the State, it was made in response to a question carefully phrased so as to limit the basis of the opinion to his personal observations in a nonprofessional capacity when the mother accompanied the children to their treatment sessions as well as information that he had heard in trial. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Observations by nurse.

Observations of emergency room nurse relating to alcohol on the breath of defendant, who suffered severe head and facial injuries in an accident which resulted in his being charged with the offense of driving while under the influence of intoxicating liquor, constituted information which was acquired while attending a patient in a professional capacity and which was necessary to enable her to act in that capacity and was, consequently, privileged information; therefore, action of trial court in allowing testimony of nurse as to her observations, without a waiver by the defendant of the privilege, was error. State v. Raymond, 139 Vt. 464, 431 A.2d 453, 1981 Vt. LEXIS 496 (1981).

Psychiatric exams.

Expert medical witnesses’ recounting of defendant’s statements made in course of their psychiatric examination of him in regard to issues of premeditation and malice were inadmissible in prosecution for first-degree murder. State v. Lapham, 135 Vt. 393, 377 A.2d 249, 1977 Vt. LEXIS 638 (1977).

Rescuers.

Witness who had taken a basic CPR course in connection with military service and was enrolled in a “first-responder” training program was not a physician, dentist, nurse, or mental health professional for purposes of physician-patient privilege was inapplicable was not error. State v. Tatro, 161 Vt. 182, 635 A.2d 1204, 1993 Vt. LEXIS 102 (1993).

Where rescuer at accident scene testified that he wanted to know who was driving the car so that he could assess the damage to an unconscious passenger and that he did not intend to treat defendant, and defendant did not testify on this point and presented no evidence that he intended his communication to be confidential, trial court’s ruling that physician-patient privilege was inapplicable was not error. State v. Tatro, 161 Vt. 182, 635 A.2d 1204, 1993 Vt. LEXIS 102 (1993).

Scope of privilege.

Duty to train claim, recast as a duty to inform the parents of a former patient in their action against the mental health treatment facility and service provider that arose from the patient’s assault on a victim, should have survived dismissal because it was not statutorily barred by confidentiality concerns based on statutory exemptions or exceptions, and it was warranted by policy and factual concerns. Kuligoski v. Brattleboro Retreat, 2016 VT 54A, 203 Vt. 328, 156 A.3d 436, 2016 Vt. LEXIS 55 (May 6, 2016).

Pharmacists are not covered by the doctor-patient privilege. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Observations of a patient’s mental or physical condition by a licensed practical nurse is just as much information acquired while attending the patient as statements, admissions or other utterances made by the patient to the nurse, and if the observation is one which is necessary to enable the nurse to act in a professional capacity, then it is privileged information. State v. Raymond, 139 Vt. 464, 431 A.2d 453, 1981 Vt. LEXIS 496 (1981).

This section prohibits physician from disclosing any information, not just admissions made directly to him, and the full disclosure contemplated by the statute encompasses all statements made by client and acquired by physician while attending the defendant which might bear upon sanity regardless of when or to whom the statements were made. State v. Hohman, 136 Vt. 341, 392 A.2d 935, 1978 Vt. LEXIS 627 (1978).

Statements to non-physician.

Trial court did not violate this section by permitting a nurse to testify to statement of defendant charged with driving while intoxicated that he was too drunk to sign the consent-to-treatment form before being treated at hospital, and the defendant’s spontaneous and volunteered declaration of his inability to sign his name did not constitute privileged information; defendant’s statement was made prior to the commencement of any treatment at the hospital, the nurse was fulfilling a clerical duty required for all incoming patients, and the nurse specifically testified that the defendant’s volunteered statement was not necessary for her to act in her professional capacity. State v. Sweet, 142 Vt. 238, 453 A.2d 1131, 1982 Vt. LEXIS 634 (1982).

Where court allowed psychiatrist for defendant being tried for murder to testify on cross-examination to certain admissions contained in psychiatrist’s client conference report, the admissions having been made to defense counsel’s investigator relating in gruesome detail the defendant’s actions and mental processes as he strangled victim and disposed of her body, physician-patient privilege was violated and reversal of conviction was required. State v. Hohman, 136 Vt. 341, 392 A.2d 935, 1978 Vt. LEXIS 627 (1978).

Waiver.

Mother who opposed state’s petition to have her child declared in need of supervision waived doctor-patient privilege concerning testimony of child’s psychologist by virtue of opposition to the petition. In re C.I., 155 Vt. 52, 580 A.2d 985, 1990 Vt. LEXIS 127 (1990).

Child who opposed state’s petition to have him declared in need of supervision placed his mental health in issue by such opposition and could not thereafter assert doctor-patient privilege to exclude testimony of his psychologist concerning him and his mother; the impact of the home environment on the juvenile lies at the heart of any child in need of supervision proceeding. In re C.I., 155 Vt. 52, 580 A.2d 985, 1990 Vt. LEXIS 127 (1990).

An act by a party to a civil proceeding, placing his or her health at issue, has the effect of waiving the physician-patient privilege of this section. In re M.M., 153 Vt. 102, 569 A.2d 463, 1989 Vt. LEXIS 239 (1989), cert. denied, 494 U.S. 1059, 110 S. Ct. 1532, 108 L. Ed. 2d 771, 1990 U.S. LEXIS 1613 (1990).

The privilege provided in subsection (a) of this section is not sacrosanct and can properly be waived in the interest of public policy under appropriate circumstances. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422, 1985 Vt. LEXIS 377 (1985).

A mental patient’s threat of serious harm to an identified victim is an appropriate circumstance under which the physician-patient privilege may be waived; however, the therapist’s obligation to the patient requires that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422, 1985 Vt. LEXIS 377 (1985).

Once the patient has waived the privilege afforded him under this section by the commencement of an action, such waiver applies to the discovery of matters causally or historically related to the patient-plaintiff’s health put in issue by the injuries and damages claimed in the action. Castle v. Sherburne Corp., 141 Vt. 157, 446 A.2d 350, 1982 Vt. LEXIS 496 (1982).

Waiving of privilege under this section relating to information acquired by a licensed practical nurse while attending a patient in a professional capacity is within the province of the patient and not the nurse. State v. Raymond, 139 Vt. 464, 431 A.2d 453, 1981 Vt. LEXIS 496 (1981).

The bringing of an action for damages arising from injuries to the person constitutes a waiver, with respect to those injuries, of the privilege granted by doctor-patient privilege statute, and plaintiff could be ordered to answer interrogatories relating to the otherwise privileged information. Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976).

Who may claim privilege.

Child opposing State’s petition to have him declared in need of supervision could not exclude his psychologist’s testimony about him and his mother by claiming doctor-patient privilege on his mother’s behalf; the doctor-patient privilege is personal to patient and may be claimed only by the patient, his guardian or conservator. In re C.I., 155 Vt. 52, 580 A.2d 985, 1990 Vt. LEXIS 127 (1990).

Cited.

Cited in State v. Percy, 149 Vt. 623, 548 A.2d 408, 1988 Vt. LEXIS 84 (1988); State v. Chenette, 151 Vt. 237, 560 A.2d 365, 1989 Vt. LEXIS 35 (1989); State v. Valley, 153 Vt. 380, 571 A.2d 579, 1989 Vt. LEXIS 259 (1989); State v. Curtis, 157 Vt. 275, 597 A.2d 770, 1991 Vt. LEXIS 176 (1991).

Law Reviews —

Cross-examination of psychiatric witnesses under the Vermont doctor-patient privilege when issue of insanity is raised, see 3 Vt. L. Rev. 191 (1978).

For note relating to post-traumatic stress disorder as an insanity defense, see 9 Vt. L. Rev. 69 (1984).