17 Conn. 345 | Conn. | 1845
The objections to the evidence and to the charge, have not been argued separately by the counsel,
The parties both claim under the frill of Thatcher Brown ; the plaintiff directly, the defendant derivatively. Brown died in 1815. The plaintiff being in possession of the premises, must have a right to recover, unless the defendant can show a title. This he attempts to do, by showing he is tenant in common, and has a right to occupy with her.
It seems, that the husband of this plaintiff, and the father of one of the devisees under whom the defendant derives his title, died some thirty years since, and his widow has been in possession of the premises since that time. After the children became of age, in 1826, it was agreed between her and them, that a division should be made of the estate among them, by three persons, whom they named. This agreement was in writing, and the doings of these persons under it were also in writing; and the plaintiff then occupied these premises until 1843, when this defendant entered in, and committed the acts complained of in this declaration.
It is not pretended, that the defendant had any other or greater right than Thatcher Brown, the son, had ; nor that if he, the devisee, and a party to this agreement, was bound by what was done under it, but that the defendant was also bound by it.
The question then arises, what was the effect of this agreement between the parties in interest, to submit the subject of this devise of the estate to these three men, and their actions under it, with the subsequent occupation.
The counsel for the defendant say, that this was not such a distribution as our statute requires, and consequently, was no distribution : it was not such a conveyance as our law requires, and therefore, no title can pass, and no severance be had.
That this is not a distribution such as the statute requires, and that this division is not evidenced by deed, is certainly true. But the plaintiff is in possession of this property, in the actual occupation, and has a right to recover of any person committing a trespass thereon, unless such person can show a title. How does the defendant attempt to do this, by setting up a title in Thatcher Brown, as tenant in common ? The plaintiff
It is true, we are in a court of law ; and we must see whether the principles of law will support this claim.
The plaintiff claims, that this division is in nature of an award, and that it has been settled, that though an award respecting lands is not binding upon the parties, as an award, still it shall operate as an estoppel.
To this it is answered, by the defendant, that there is no award; for there was no dispute between the parties; of course, no submission, and no award. Now, we do not understand, that there must be a law-suit, or even a quarrel, to make valid a submission and award. Two persons not agreeing about the location of a boundary, or a division of a common interest, may as well refer these questions to mutual friends, as if an action of trespass had been commenced, or an assault and battery had occurred in consequence of the dispute. A submission to arbitration is for the purpose of an amicable and easy settlement of a doubtful concern ; and it is wholly immaterial whether there be any actual controversy or not. In Shis case, a female and two young men have an interest in common in lands ; neither perhaps sufficiently acquainted with their value to know what they ought to claim, and each anxious for their just rights. What course more proper to preserve harmony in a family, than to have this settled by mutual fiiends l Such a course is as proper to prevent controversy, as to settle it when begun. One of the modes of making partitions at common law among parceners, given by Littleton, is, “ to choose, by agreement between themselves, certain of their friends to make partition of the lands or tenements and then the parceners might select according to sen-
It is said, the transaction has none of the distinctive characters of an award. Now, if there was a submission of something to be settled by these men, it would seem that the opinion given upon the subject would be an award. There is no technical language in which an award must be clothed. Where parties agree to submit to and abide the opinion of others, that opinion, clearly and definitely expressed, constitutes an award. The friends selected go on, and allot shares marked out by boundaries to each devisee, so that each shall know his own separate part from the rest. They thus fulfil the duty imposed upon them, by adjusting the subject matter referred to them ; and this is all any arbitrators can do by their award. It is said by Judge Thompson, a partition made by persons appointed for the purpose, might be considered in nature of an award. Shepherd v. Rogers, 15 Johns. R. 497. It is not therefore easy to see, why this case does not fall within the principle established by this court, in Shelton v. Alcox, 11 Conn. R. 240. That was a mere question of title. This is a question merely as to the division of an acknowledged title. There, this court held, that although the award could not conclude the title, it might prevent the party against whom it is made, and those claiming under him, from contesting such title again. And in this case, though this decision may not have the full effect of a distribution under the statute, we can see no reason why it should not conclude the parties from claiming against it, as much as if the question was a mere question of title.
It is said, that in this case, there is a statute Jaw directing the mode of distribution. And so there is a statute law directing how title to real estate shall pass, not derived from descent. In the one case, it is through the courts of probate ; in the other case, by deed; and it is as explicitly declared how it shall be done, in the one case, as in the other.
It is not intended to go over the authorities adduced on the former occasion. A recent case in the state of Vermont has occurred, where the court say, it is not necessary to decide
It is true, that in some of the states, doubts have been expressed, whether in case of real estate, the estoppel must not be by deed. This certainly is not the common law. Little-ton says — “ And so a man can see one thing in this case, that a man shall be stopped by matter in fact, though there be no writing, by deed, indenture or otherwise and Lord Coke, commenting hereon, gives as an instance of estoppel by matter in fact, this very case of partition. Co. Litt. 356. sect. 667. And such an award has in England been held sufficient to estop a party against whom ejectment was brought, from setting up his title. Doe d. Morris & al. v. Rosser, 3 East, 15.
But in the case before us, here is not only the agreement that the award should be binding upon the parties, as in the case above referred to, and in Shelton v. Alcox; but the parties have acted under it for about eighteen years; and the persons under whom the defendant claims, took a deed of this plaintiff, confirming that award, as to most of his part of the lands set to him. This is a feature in the case, which does not exist in Shelton v. Alcox. Now, the rule as it regards estoppel in pais, is, that where a man, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act upon that belief, so as injuriously to alter his previous position, the former is concluded from averring, as against the latter, a different state of things as existing at that time. Pickard v. Sears, 6 Ad. & El. 469. (33 E. C. L. 115.) Gregg v. Wells, 10 Ad. & El. 90. (37 E. C. L. 54.) Cases are numerous in this country, where a person has asserted a fact, upon faith of which another acts, and will receive damage, if that fact is not true, where it has been held, that he shall be estopped from contradicting it.
Thus where A told an officer, who was directed to attach the property of B, that B owned one fifth of certain boards, which, in consequence, were attached and sold at the post; A was not allowed to set up a claim that B was to assist him
So where one about to distrain for rent, was informed, by the tenant, that he owned nothing, or but a trifle, on the premises ; in ejectment brought for default of payment of rent, the tenant offered to show there was sufficient property on the premises ; the court said, he was estopped from disputing the truth of his representations. Pres. Cong. of Salem v. Williams, cited 8 Wend. 483.
In Massachusetts, it has been said, such declarations, not acted upon, may be strong evidence against the party making them ; but when acted upon by the party to whom they were addressed, to his prejudice, (if the fact were otherwise,) they will be conclusive. Wallis v. Truesdale, 6 Pick. 455.
Look at the situation of the parties in this case, in connex-ion with these principles. Nearly twenty ypars since, Thatcher Bruton, whose rights are now set up by the defendant, agreed with the plaintiff, that the decision of certain friends, in dividing their common property, should bind him ; in consequence of which, the plaintiff goes into, and ever since continues in, possession of a certain part set to her ; and Thatcher Brown sells the part, or most of the part, set to him ; and lest she should ever question the title acquired by the division, he requires of her, and she executes to him, a deed of the property by him sold, thus depriving herself of all interest in that portion of the estate. And now, at the end of sixteen years, it is claimed, that this division is nothing ; and in face of the agreement that the decision should be binding, in face of the deed expressly taken by him to remove doubts on the subject, after having acquired all the benefits of the division, he, or his representative, asks the court to suffer him to say, that this was a mode of distribution unknown to our law. If ever the doctrine of an estoppel in pais is to prevail, it would seem as if this was the case. Any other construction would enable the party to perpetrate a most gross fraud. In this respect, the case differs entirely from Munson v. Munson, 3 Day 260. so
It was further claimed, on the part of the plaintiff, that if the defendant was right in his defence, and there had been no division, then the deed under which he claimed must,, for the same reason, be void ; being given by one tenant in common of lands held in common, by metes and bounds, and not an undivided interest.
But there is nothing in the motion tending to show, that this question was made below ; and the deeds do not seem clearly to show, in this respect, the state of the title. The court therefore give no opinion upon this point; but think there ought to be no new trial.
New trial not to be granted.
