50 Conn. 46 | Conn. | 1882
This is a suit for the foreclosure of a mortgage and for the possession of the mortgaged premises. The principal defendant is Samuel McDonald, who claims to be equitably entitled to the mortgaged premises, and to have been in adverse possession of them when the mortgage was made by the defendant Leverty, who held the record title, as well as at the time the premises were conveyed to Leverty.
It appears from the finding that on the 24th of December, 1874, Nathaniel Wheeler and Henry Sanford of Bridgeport, who were then the owners of a piece of land on one of the streets of that city, which included the land in question, made a written contract with the defendant Leverty, under which the latter was to erect a block of five brick dwelling houses on the land, of which Wheeler and Sanford were to purchase the eastern one at a stipulated price and to convey the rest to Leverty or his assigns at a stipulated price, the price of the land being applied toward payment for the house taken by them of Leverty and the balance payable to him in cash. They also agreed to procure mortgage loans on each of the next three houses, of $2,400 each, for the benefit of Leverty. On the same day Leverty contracted with Fones & Canfield, carpenters, to do all the wood work of the block for $2,300, to be paid for by a conveyance to them of the fourth house in the block from the east at the price of $4,100, they paying Leverty the difference, $1,200, in cash. Fones & Canfield being unable to perform the contract, assigned it, with the consent of Leverty, to the
We have thus a contract of Wheeler and Sanford to convey the four houses of the block to Leverty on his completing the block, the contract of Leverty to convey the house in question to McDonald on his completing the wood work of the block, McDonald’s completion of the wood work to the acceptance of Leverty, and McDonald’s entry into possession with Leverty’s consent in anticipation of the conveyance to be made to him. The rights of the parties at this point are very clear and the whole case a simple one.
Thus matters stood until a dispute arose between McDonald and Leverty as to whether the'former was to pay a certain bill of lumber, the particulars of which are unimportant, but which resulted in Leverty’s entering upon the premises on the 10th of January, 1876, and compelling the tenants to remove from the building, but upon McDonald’s arriving there was a contest for the possession, which resulted in Leverty’s locking some of the inside doors and keeping the keys and in McDonald’s continuing in the general occupancy with the outside keys in his possession. The occupancy was continued until April 1st, 1881, both parties claiming during that period to have been in possession.
On the 15th of January, 1876, Wheeler and Sanford executed and delivered to Leverty a conveyance of the property which by their contract they were to convey to
The first question is, whether at the time of the conveyance by Wheeler and Sanford to Leverty, McDonald was in such possession of the premises in controversy as to have ousted the grantors, so that their deed was void under the statute against selling pretended titles. Gen. Statutes, p. 354, sec. 15. That statute is as follows:—“All conveyances and leases, for any term, of lands or tenements of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void.”
The finding of the committee with regard to the possession of McDonald is as follows:— “ I find that when McDonald entered into the occupancy of said premises on the 22d of November, 1875, he so entered, not claiming any independent title, but acknowledging and recognizing said Wheeler and Sanford and said Leverty to be the legal owners thereof; that he commenced' the occupancy of the premises by permission of said Leverty, but since January 10th, 1876, has continued such occupancy against his consent. But I find that he has ever held and now holds said occupancy, setting up no complete legal title in himself, but under a claim that said Leverty and said Wheeler and Sanford, as the holders of the legal title, were bound by a contract obligation to give him a deed thereof; and I find that no notice was ever given by McDonald to said Wheeler and Sanford that he claimed to hold adversely to them.”
We think it clear that upon this finding, whatever might be the character of McDonald’s possession as against Leverty, it can not be regarded as adverse to Wheeler and Sanford; and as they were the parties. holding the legal title at the time of their conveyance- to Leverty they
The authorities are numerous and agreed in support of the proposition that a party taking possession of premises under a contract of sale, and in expectation of a conveyance under the contract, is not holding adversely to the owner, and that he can change his licensed possession into an adverse one only by explicit acts on his part which give the owner notice of such adverse holding. In Greeno v. Munson, 9 Vermont, 37, Redfield, J., says, (p. 39,):—“ No one who goes into possession of land under another, or acknowledging the title of another, will be heard to dispute the title of that other, during the continuance of the relation. The same doctrine has been extended to the case of one who goes into possession of land under a contract of sale.” The case of Ripley v. Yale, 18 Vermont, 220, was a case like the present one, inasmuch as it was claimed that an adverse possession made void, under a statute like ours, a deed given by one Bly, the owner, to a stranger. Williams, C. J., says, (p. 222):—“ It appears that the defendant entered into possession of the premises under a contract for the purchase of the same and claiming his right under and by virtue of the contract. We believe his possession, under such a contract, can not in any view of it be deemed adverse to Bly. * * While there subsists any contract, express or implied, for the purchase of the title, between the parties in and out of possession, the possession can not be adverse.
* * Until he does some unequivocal act to manifest a repudiation of the contract and brings 'this home to the knowledge of the other party, he can not be considered as holding adversely to the person under whom he took possession.” In Ormond v. Martin, 37 Ala., 598, it is held that where a party took possession under a bond for a deed and in expectation of .a deed from the owner, he could not be holding adversely to the owner. The same doctrine is laid down in Stamper v. Griffin, 20 Geo., 312, and in Long v. Young, 28 Geo., 130. In the last case it is held that where a person held possession under a contract for a deed, and it
The text books and authorities are not altogether agreed as to the precise relation to the property and to the real owner, of a person who has entered into possession under an agreement to purchase. Some of them call him a tenant at will but others a mere licensee. In either capacity he would not be allowed, until by an unequivocal act he had repudiated the relation, to deny the title of the true owner. It seems to us that his position is that of a licensee. He enters under no promise to pay rent, but merely to wait for the consummation of his right to a conveyance from the owner, while it has been held by our own court in Vandenheuvel v. Storrs, 3 Conn., 203, that he is not liable for use and occupation. This view of his character is taken by the Supreme Court of the United States in Burnett v. Caldwell, 9 Wall., 290. Swayne, J., delivering the opinion of the court,- says:—“ If the contract stipulates for possession by the vendee, or the vendor puts him in possession, he holds as a licensee. The relation of landlord and tenant does not subsist between the parties. The characteristic feature of that relation is wanting. The vendee pays nothing for the enjoyment of the property. The case comes within the category of a license. In such cases the vendee can not dispute the title of the vendor any more than a lessee can question the title of his lessor.” This view is supported by numerous authorities cited by the learned judge. It is enough for the present case that McDonald was in a position in which his possession could not be regarded as adverse to the owner.
It should be noticed, that while the contract of Wheeler and Sanford was to convey to Leverty “ or his assigns ” it is not found that Leverty had ever assigned his right to a deed of the premises in dispute to McDonald, while all the facts found seemed to render any such assignment improbables, The contract of Wheeler and Sanford therefore stood as one to convey to Leverty, and could be performed on their part only by a conveyance to Mm. They could not be affected by airy controversy between Leverty and McDonald, even if it was brought fully to their knowledge. If McDonald wished to protect his rights he could at any time have brought all the parties into a court of chancery and had his rights adjudicated upon. Regiecting to do this he can not complain of a conveyance which Wheeler and Sanford were under a plain contract to make.
We conclude therefore that the deed of Wheeler and Sanford to Leverty of January 15th, 1876, conveyed a good legal title to the premises to Leverty.
Thus the matter stood until the first day of July, 1876, when Leverty made a mortgage of the premises in controversy to Harral, the plaintiff, for $2,400, and the nest question is whether the possession of McDonald was at that time such as to make the mortgage void under the statute we have been considering.
The relation of McDonald’s possession to the case has
Regarding the possession of McDonald as sufficient therefore to make void a conveyance of the property by Leverty, under the statute, was the mortgage to Harral void ? The statute invalidates all “ conveyances ” made by a grantor who is ousted, unless made to the person in possession. Was the mortgage such a conveyance?
It is contended by the counsel for Leverty in his brief that if it was, yet as Leverty had agreed in his contract
But we are satisfied that the mortgage is not to be regarded as a “conveyance” within the meaning of the statute. The precise point was decided by this court in the case of Leonard v. Bosworth, 4 Conn., 421. That was, it is true, a qui tam action to recover a penalty given by the statute, as it then stood, for receiving a deed of land of which the grantor was ousted, the deed in fact being a mortgage; but the question whether a mortgage is an alienation of the land within the meaning of the statute, was the same that would have been presented in any other ease in which the question could have arisen. Hosmer, C. J., in giving the opinion of the court, all -the judges concurring, says, (p. 424):—“Is a mortgage an alienation of land? The cases cited by the defendant show that it is not, and the point has frequently been decided in this court. * * A mortgage may be considered as a lien, by means of which the mortgagee may obtain possession, and, if his debt is not paid, appropriate the thing pledged in satisfaction; but it is no alienation ‘ for years, life, lives or forever, or for any ¡(other term of time whatsoever.’ ”
The phraseology of the statute has been changed in the Revision of 1875, (which is to govern this case,) but we can not regard the change as intended to affect the meaning. It seems to have been made merely for the purpose of con
The case of Leonard v. Bosworth is strongly supported by that of Bates v. Coe, 10 Conn., 280. The question there was whether a mortgage was within the statute of 1828, mating void “ conveyances and assignments ” made by persons in failing circumstances with a view to insolvency. Daggett, C. J., giving the opinion of the court, says, (p. 294):—“ The prohibition is of conveyances and assignments. But surely a mortgage is not an assignment, for that passes the whole interest in the thing assigned; whereas a mortgage creates only a lien in favor of the mortgagee. Nor is it a conveyance, within the meaning of that term as it has been understood by jurists in New York, Massachusetts, Maine and Connecticut for the last thirty years, and by English judges for the last half century.” After citing a great number of cases from the English decisions and from those of the states named, and among them that of Leonard v. Bosworth, the judge adds:—“ The result of all these cases is, that a mortgage is not a conveyance of the land, but a charge or lien upon it; and that the mortgagee’s interest is a chattel; and that he is vested with the right to maintain ejectment to obtain and appropriate the pledge.”
In Clark v. Beach, 6 Conn., 158, Hosmer, C. J., (dissenting, but not disputed on this point, and quoted approvingly
It has been held in numerous cases that a mortgage of insured property is not an alienation of it within the meaning of a provision in a charter or policy making the policy void if the property is “alienated by sale or otherwise.” Jackson v. Massachusetts Mutual Fire Ins. Co., 23 Pick., 418; Rice v. Tower, 1 Gray, 426; Rollins v. Columbian Ins. Co., 5 Foster, 204; Pollard v. Somerset Mutual Ins. Co., 42 Maine, 225; Conover v. Mutual Ins. Co. of Albany, 3 Denio, 254.
Were the question entirely a new one we should not regard it as free from difficulty. It is manifest that the statute can easily be evaded under the cover of a mortgage. In Gunn v. Scovil, 4 Day, 241, which we have before referred to upon another point, Reeve, J., in giving the opinion of the court, in„ the course of an illustration of a
If we are right in the views we have thus far taken there was no error in the judgment of the court below, holding the mortgage of Leverty to the plaintiff valid, and decreeing a foreclosure unless the mortgage debt was paid by McDonald or other of the respondents interested.
But the counsel for McDonald, in his assignment of errors, and in his brief, claims sundry minor errors to have gone into the judgment, which it becomes necessary for us to consider.
One of these is that his motion that Wheeler and Sanford should be cited in as co-defendants should have been allowed; and another that the committee should have heard evidence upon the question of a fraudulent combination between Wheeler and Leverty to withhold from him the title to the property and vest it in Leverty. We will consider these two claims of error together.
The object of bringing in Wheeler and Sanford, and of the evidence as to a fraudulent conspiracy to withhold from McDonald the title, was mainly to procure the setting aside of the deed of Wheeler and Sanford to Leverty, and the vesting of the title in McDonald. A further claim is made in this connection which we will consider later.
It is obvious that if Wheeler and Sanford had been brought in, and evidence of the fraud had been received
The plaintiff therefore obtained a valid mortgage lien upon the property, and if the court had found and given full effect to the fraudulent conduct claimed on the part of Wheeler, Sanford and Leverty, it would not have set aside the mortgage to the plaintiff, but would merely have given McDonald the title subject to that mortgage. McDonald therefore is not injured in being compelled to redeem that mortgage, since he would have been compelled to do it in any event, it having obtained a precedence of his own equitable rights that it could not be deprived of.
It is clear therefore that if the court committed any error in excluding this evidence and denying the motion to make additional parties defendant, no harm has resulted to McDonald from the error.
But McDonald further claims that lie was entitled to a judgment against Leverty for damages for the fraud practiced upon him in withholding the deed to which he was entitled under his contract, and against Wheeler and Sanford also, if they were brought in as he moved to have them; and also a judgment against Leverty for six hundred dollars and interest, being the amount of the mortgage above the sum which by the contract he was to pay Leverty as the price of the premises which were to have been conveyed to him. This price by the contract was to be $4,100, of which $2,800 was to be applied in payment for the work done on the block by McDonald, and the balance ($1,800) was to be paid to Leverty by McDonald in cash. By the decree McDonald, after paying the mortgage debt, will become vested with the title to the premises; but instead of paying Leverty the $1,800 he will have been compelled to pay Harral, the mortgagee, $2,400, (taking here no account of interest on either side.) He will thus have paid $600 more than by the contract he was to pay. This he has been compelled to pay by the wrongful act of
These claims are made under the provisions of the Practice Act of 1879. That act provides, in section 6, that courts may “ administer legal and equitable rights and apply legal and equitable remedies, in favor of either party, in one and the same suit; ” and in section 12, that “ any person may be made a defendant who has or claims an interest in the controversy or any part thereof adverse to the plaintiff, or whom it is necessary, for a complete determination or settlement of any question involved therein, to make a party;” while section 7 provides that the same suit may embrace “ claims, whether in contract or tort, or both, arising out of the same transaction or transactions connected with the same subject of action.” The 5th section provides for counter claims, which it is reasonable to supjiose were intended to embrace as wide a diversity of claims as the complaint, as follows:—“ In cases where the defendant has either in law or equity, or in both, a counter-claim or right of set-off against the plaintiff’s demand, he may have the benefit of any such set-offs or counter-claims by pleading the same as such in his answer and demanding judgment accordingly.”
This important part of that statute has never been before this court for construction. After careful consideration we have come to the conclusion that it did not intend to give any wider range of equitable claim on the part of the defendant or defendants than that allowed by the settled chancery practice, by means of answers and cross-bills, in suits in equity; it being intended to allow such equitable defence in actions at law as well as in suits in equity, leaving the matters of set-off and recoupment, already available in actions at law, precisely where they stood before the act was passed. If this was all that was intended we are able to determine in every particular case whether a cross-suit or counter-claim, or cross-claim between co-plaintiffs or co-
Let us see what these rules are, so far as they apply to the question we are now considering.
Story says in his Equity Pleadings, § 389:—“ A cross-bill, ex vi terminorum, implies a bill brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. A bill of this kind is usually brought, either (1) to obtain a discovery, &c.; or (2) to obtain full relief to all parties, touching the matters of the original hill.” And in § 392:—“It frequently happens, and particularly if any question arises between two defendants to a bill, that the court can not make a complete decree without a cross-bill or cross-bills, to bring every matter in dispute completely before the court, to be litigated by proper parties and upon proper proofs. In such a case it becomes necessary for some one or more of the defendants to the original bill to file a cross-bill against the plaintiff and some or all of the other defendants in that bill, and thus to bring the litigated points fully before the court.” And in § 396 :—“ Upon hearing a cause it sometimes appears that the suit already instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the. rights of all the parties. This most commonly happens where persons in opposite interests are co-defendants, so that the court cannot determine their opposite interests upon the bill already filed, and yet the determination of their interests is necessary to a complete decree upon the subject matter of the suit.” And in § 399:—“ A cross-bill, being generally considered as a defence to the original bill, or as a proceeding necessary to a complete determination of a matter already in litigation, the plaintiff is not, at least as against the plaintiff in the original bill, obliged to show any ground of equity to support the jurisdiction of the court. It is treated, in short, as a mere, auxiliary suit, or as a mere dependency upon the original suit.”
Numerous other authorities, English and American can be cited to the same effect.
That the statute did not intend to give a wider range to equitable defences and cross-suits, is, we think, inferable from the rules of practice under it established by the judges of the Supreme and Superior Courts, under an act of the legislature which gives the rules the authority of an enactment. The seventh section of chapter 3 of these rules is as follows:—“ Transactions connected with the same subject of action may include any transactions which grew out of the subject matter in regard to which the controversy has arisen, as, for instance, the failure of a bailee to use the goods bailed for the purpose agreed, and also an injury to them by his fault or neglect.” The next section is as follows:— “Cross-complaints, of the nature of cross-bills in equity, touching matters in question in the original complaint, may be filed by the defendant in any action, whether such action be for legal or equitable relief; and additional parties may be summoned in to answer the same if necessary.” And chapter 5, sec. 1, speaks of counter-claims for equitable relief as “ of the nature of cross-bills in equity.”
We are satisfied therefore that a defendant by a counter
Under this rule can the matters which McDonald sought to bring into the present suit, and which were ruled out, be regarded as admissible ?
One of these matters is a claim for damages on Leverty for his fraud in withholding from him the legal title to the premises and making the mortgage upon them which is now’ before the court; with a further claim that Wheeler and Sanford should be brought in as additional defendants, that he might recover damages also against them for their fraudulent combination with Leverty to keep him out of the legal title. With regard to this claim it is perfectly clear that it does not in any manner grow out of the subject matter in controversy, nor is it necessary to a full adjudication upon that subject matter. It does not touch the question whether the plaintiff is entitled to a foreclosure, nor whether McDonald has an interest in the mortgaged premises which is to be protected by the decree. And whatever claim he has upon these parties for damages is left wholly unimpaired and can be made the subject of an action at law at his pleasure.
The other matter ruled out by the court below is the claim of McDonald to a judgment against Leverty for the $600. It is clear that he had a claim on him for that amount; and it seems to have grown out of the matter in controversy, though a judgment upon it does not seem to have been necessary to a full disposition of the real subject matter of the suit. The suit involved the questions, whether the plaintiff was entitled to the mortgage debt which he claimed, and whether a decree for a foreclosure would do injustice to any parties having an interest in the
We are clear that the court committed no error in any of its rulings.
In this opinion the other judges concurred.