Foote v. Brown
70 A. 699
Conn.
1908
Check Treatment
Prentice, J.

Thе reasons of appeal present in various forms certain questions as to the right of the plaintiff to *224 maintain her action, even upon the assumption that the facts are as claimed by her. It is asserted, and was unsuccessfully asserted below, that her action must fail for want of a sufficient title, accompanied with the present right of possession, being shown in her: (1) because the will of her husband conferred upon her no such title as would enable her to maintain her action; (2) because whatever title the will may have set out to her, it never vested in her by reason of the incompleteness of the probate proceedings and the condition of the testator’s estate as shown, or at least that the right of possession was for these reasons never hers; and (3) because the acts of Jenkins in leasing and managing the property, either alone or in connection with the status of Foote’s estate, show that the possession of the premises was that of Jenkins as administrator c. t. a. and never that of the plaintiff in her own right.

The first of these reasons is insufficient. “The action of disseizin will lie in all cases in favor of a man who has an interest in lands, and is entitled to the possession of them, whether it be an estate in fee, for life, or for years, or for an interest in the herbage, or growing crops; but the right must be оf some duration, and exclusive.” 1 Swift’s Digest, s. p. 507. Upon the former appeal, with this will before us, we said that the plaintiff was an owner of land in possession, that her grievance against the defendant was an unlawful entry and occupation of land, and that her redress was possession and damages. Foote v. Brown, 78 Conn. 369, 378, 62 Atl. 667.

The title which came to Mrs. Foote under her husband’s will vested in her immediately uрon his decease. Brewster v. McCall’s Devisees, 15 Conn. 274, 289. The devise being a specific one and of the character it was, there went with it ‍‌​​​​​​‌​‌‌‌‌​​‌‌​‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‍the right to the immediate possession of the property. General Stаtutes, § 362; Merwin v. Morris, 71 Conn. 555, 573, 42 Atl. 855, The vesting of the plaintiff’s title, to *225 gether with the right of possession, was not in suspension during the settlement of the estate of the testator, nor delayed by the fact that the property might be wanted for the paymеnt of debts, as it was not in fact. Griswold v. Bigelow, 6 Conn. 258, 263.

The action of Jenkins in signing leases as administrator, and in collecting the rents, disbursing the rent receipts and managing the property generally, cannot be sаid to show conclusively that he and not she was the party in possession. Those features of the situation were simply facts to go, with their explanation and any other pertinent facts, to the jury for the determination of the question of fact involved. They were properly submitted to the jury, and the issue found in favor of the plaintiff’s contention that she was Jenkins’ principal in all that he did, and that his acts indicative of possession were her acts.

The plaintiff, in support of her title to the beach, offered in evidence deeds running back in a cоntinuous chain to 1828, and direct evidence that the parties in this chain of title had been in occupation and open, actual and exclusive occupation as their оwn since 1852 during the ownership of Foote. No direct evidence of occupation at an earlier date by any person in this line of title was presented. Upon this evidence the plaintiff’s claim was that a record title to the beach was established in George A. Foote, and if not, that one by prescription was shown. The court, after calling the jury’s attеntion to this dual claim, proceeded to instruct them as follows:—

"It is the law of this State that ownership of real property carries a right of possession as much as the ownershiр of personal property, and ownership in one case draws after it possession as much as in the other. The possession involved in the fact of ownership is sufficient, if the lаnd was not in the actual exclusive occupation of another. A mere paper chain of title in the plaintiff does not establish his ownership of the land, unless his possession оr *226 that of his grantors is shown. But evidence of actual possession is unnecessary if the jury is satisfied, by documentary or other evidence, of ownership ‍‌​​​​​​‌​‌‌‌‌​​‌‌​‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‍by the plaintiff’s predecessors in title, since title thus established draws with it possession in the absence of any evidence to the contrary.”

To the last portion of these instructions the defendants object. They say, that in view of their claim that the public was in possession in 1849, when Foote took his deed, and that his grantor was out of possession, the jury must have been misled into the belief that he acquired title by his dеed by the mere fact of its being executed and delivered.

The instructions were in harmony with the repeated declarations of this court, and correct. Dawson v. Orange, 78 Conn. 96, 107, 61 Atl. 101; Merwin v. Morris, 71 Conn. 555, 573, 42 Atl. 855; Waterbury Clock Co. v. Irion, 71 Conn. 254, 259, 41 Atl. 827; Noyes v. Stillman, 24 Conn. 15, 21; Bush v. Bradley, 4 Day, 298, 306. But the court did not stop with thеm. It immediately took up the defendants’ claim from the situation shown, and gave such instructions thereupon in addition to those recited, that the jury could not have been misled in the way suggested.

In the course of its charge the court read a somewhat extended extract from the opinion in Carney v. Hennessey, 74 Conn. 107, 111, 49 Atl. 910, upon the subject of title by prescription. In the record this extract is madе to contain the word "with,” where “without” was the word in the original, and the word plainly intended. This portion of the charge related to a material matter, and the instructions as thus framed arе assigned as error. The form ‍‌​​​​​​‌​‌‌‌‌​​‌‌​‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‍which the instructions are thus made to assume is so palpably the result of a mistake on the part of the stenographer and not of the court, that errоr ought not to be predicated upon it. Furthermore the meaning of the court was too plain to be mistaken, and the general tenor of the charge such that *227 the jury could not hаve been misled by an inadvertent interchange of words, if one there was.

During the charge the court made an error in respect to the contents of a deed of a certаin date, confusing that deed with an earlier one. This error was later corrected, and a correct statement made. The matter involved in the error was one of trifling consеquence. Had it been of more serious importance the correction of the error would have removed all cause for complaint. If our jury system is to continue to be a practical, working one, and productive of reasonably satisfactory results, it must be given a chance to operate within human limitations as respects both judge and jury, and have reasonable presumptions applied to its operation. Substantial errors will be committed for which a remedy must be given, but an appellate court ought not to bе expected to create substance out of shadows, to conjure up errors out of trifles, or to seek for judicial irregularity by microscopic processes, spеculative imaginings, or refined reasoning.

The defendants complain of the charge in so far as it relates to a recovery against the defendant Chester A. Brown, saying that the jury were told, in substance, that a verdict could be rendered against him if it was found that he, in conversation, told Jenkins that he was occupying the land. What the court did do, and properly do, was tо receive evidence of said Brown’s admissions and his conduct, off the premises, as tending to establish a participation by him with James in the acts of disseizin, and to leave the questiоn of such participation by him to the jury, with proper instructions for their determination. The language of the court upon this point was as clear and distinct as it well could be.

The instructiоns of the court, that the effect of the vote of the town and of the instrument recorded March 23d, 1818, purporting to be signed by the proprietors, was to convey to Leete their intеrest in Pipe Beach, was not *228 prejudicial to the defendants, if not strictly accurate. Upon the trial no claim was made, so far as appears, that the instrument, not being exеcuted as required of conveyances of land, was not sufficient to give Leete title. It is now embodied in ‍‌​​​​​​‌​‌‌‌‌​​‌‌​‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‍one of the reasons of appeal. Although the instrument may not have bеen sufficient to convey the legal title, it was given for an expressed consideration, and conveyed an equitable title which, it will be presumed, later drew to it the legal title.

It is, however, now urged that the identity of the signers of this writing as the proprietors is not established. This claim was not presented below, and therefore is not fairly before us. If it were, its answer would be found in the application of the maxim, ex diuturnitale temporis omnia prcesumuntur esse solemniter acta. Dawson v. Orange, 78 Conn. 96, 118, 61 Atl. 101; Fowler v. Savage, 3 Conn. 90, 98. “God forbid, that ancient grants and acts should be drawn in question, although that сannot be shown, which was at first necessary to the perfection of the thing.” Fowler v. Savage, supra. “Antiquity of time fortifies all titles, and supposeth the best beginning the law can give them.” Ellis v. Mayor, 15 C. B. N. S. 52, 77.

The declarations of George A. Foote, testified to by his son, were admissible under § 705 of the ‍‌​​​​​​‌​‌‌‌‌​​‌‌​‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌‌​​‌​‍General Statutes. The plaintiff received her title as the devisee of the declarant, her husband. Lockwood v. Lockwood, 56 Conn. 106, 110, 14 Atl. 293; Pixley v. Eddy, 56 Conn. 336, 340, 15 Atl. 758; Baxter v. Camp, 71 Conn. 245, 252, 41 Atl. 803.

The remaining matters involved in the reasons of appeal are without merit and do not require discussion.

There is no error.

In this opinion the other judges concurred.