Kashman v. Parsons

70 Conn. 295 | Conn. | 1898

Baldwin, J.

The cross-complaint in the first action of ejectment was based upon a claim of a mutual mistake. It set up that neither party supposed at the time that the land bargained for included the triangular parcel now in dispute, or that the deed embraced it in its terms of description. These allegations were put in issue, and the issues found for the present plaintiff.

In the present action the defendant’s second defense is rested on estoppel, and in its support she pleads that she claimed this parcel as hers at the time of the conveyance, which the plaintiff well knew, and that all she sold him was the lot as then fenced in. These averments were denied, and the record of the former judgment was admissible and conclusive in support of this denial. Rules under the Practice Act, IY, § 12. It showed a finding adverse to the defendant on a point put directly in issue and material both in that action and in this: in that, because what each party sup^ posed to be the subject of the sale at the time of the transaction bore immediately upon the question of mistake; in this, because the knowledge and supposition of the defendant at that time tended to show what his knowledge and supposition was later, when Ms omission to object to the erection of the barn was set up as a ground of estoppel.

The second part of the reply, after setting up the institution of the' defendant’s cross-complamt, proceeds to aver that she “ afterwards in said cause filed also a certain request for a finding of facts in the cause. In said cross-complamt and request for finding of facts she set up each and every averment of fact wlfieh is now contained in her amended answer, and claimed relief therefor.” The averments quoted were denied by the rejoinder, and the plaintiff had a right m support of them to introduce a copy of the request for a finding, irrespective of the question whether the proceedings in wlfieh it was filed did or did not result in a judgment conclusive of the controversy presented in the suit on trial. Adams v. Way, 82 Conn. 160. It is true that such a request constitutes no part of the record of a cause, except upon an appeal from the judgment founded on exceptions to which it is relevant ; but it may contarn statements wlfieh will be receivable in a subsequent action as admissions by the party in whose behalf they were prepared. Whether there were such admissions in this particular request was a matter which had not been put hi issue by the pleadings: whether such a request was ever filed had been put in issue.

The evidence offered to show that the fences were a boundary or monument which the jury could consider as sufficient to control the distances stated in the deed, was properly excluded. The monuments which control courses and distances are those to which the conveyance itself refers. A reference to the adjoining land of the grantor as a boundary cannot be treated as describing a monument intended to control the dimensions stated, because of the existence of a fence which is not mentioned in the deed.

The objection taken by the plaintiff to the introduction of this evidence, that the matter was or might have been litigated in the former action, was untenable. That proceeding was to correct a mistake in the deed under which the plaintiff claimed, and the only mistake alleged was the description of the real boundary as sixty feet long. It was not contended then, as it is now, that the deed itself was consistent with the defendant’s claim of title. But as the evidence was incompetent to vary the written contract, for the reason already stated, the ruling of the court can constitute no ground of appeal.

There was error in excluding the evidence offered by the defendant to prove the estoppel set up in her answer. The circumstances and conduct of the plaintiff, which she sought to prove, could not have been made the subject of final determination with respect to this question of estoppel, in the former action. They were material there only as evidential of what he knew or supposed at the time of the execution of the deed. The defendant’s claim then was that he acted as if he had understood his purchase to be limited to the lot as fenced in, that is, as if the deed had been drawn as it was by mistake and did not follow the terms of their bargain. Her claim now is, that, notwithstanding he did not share her mistake but understood his purchase to cover the parcel in dispute, still by his subsequent silence, under circumstances and at a time calling for an assertion of Ms title, he so far misled her as to preclude him from a recovery upon it in this action. As to this she had a right to be heard under the issues closed.

The special finding of facts under the cross-complaint is not referred to in the judgment rendered. That is complete in itself, and sets forth upon what findings it is based. A special finding in an equitable action, distinct from the judgment, and made, as was that now in question, to facilitate the taking of an appeal, has no conclusive effect upon the parties in any collateral suit, except so far as resort may be had to it to explain the scope of the judgment, where that is doubtful upon its face, by showing what facts were the subject of inquiry and adjudication. For that purpose it is the best evidence, and takes the place that would be otherwise occupied by a witness.

The judgment on the cross-complaint was expressed in terms that are clear and definite. Its recitals state that all the issues were found for the plaintiff, and that there was no mutual mistake. The special finding was not needed to explain it, and the evidential facts which it sets forth spent their force when the ultimate facts were determined, upon which the judgment rests. The finding would not have been admissible, even as tending to show such evidential facts in answer to the evidence which the defendant offered, had that been admitted. Much less could it avail to exclude it altogether.

The plaintiff contends that the defense of estoppel was one of which the defendant might have availed herself in the former suit, and therefore cannot now be made the subject of litigation. To that action there was a perfect defense under the general denial; namely, that the legal title was in the ■ defendant by virtue of a deed from the plaintiff. She had therefore no occasion to set up any estoppel in bar; nor could it properly have been introduced into her cross-complaint. If the deed was to be reformed, such relief could only be granted on proof of a mutual mistake at the time of its execution.

It is also argued that the defense of estoppel was untenable, because when tbe defendant built her barn she held the legal title to the ground as mortgagee, and could not have been prevented by the mortgagor, had he made the endeavor, from improving her security at her own expense. Neither this question nor that of the sufficiency of the averments of the second defense to found an estoppel, was raised by the pleadings. The defense was denied, and it was not so manifestly unsubstantial or immaterial as to warrant the court in refusing to listen to any evidence of what had been alleged.

There is error, and a new trial is ordered.

In this opinion the other judges concurred.