Merwin v. Morris

71 Conn. 555 | Conn. | 1899

Hamersley, J.

The refusal to charge in the language of the 9th request is not error. The weight to be given to an entry with color of title, upon the question of adverse possession, depends upon the circumstances of the case and the nature of the color of title claimed. It does not necessarily follow that adverse possession can be proved by less evidence when the entry is under color of title than when it is not. Under the circumstances of this case the court properly left to the jury the weight to be given to the defendants’ alleged color of title.

The other requests to charge, so far as applicable to the case disclosed by the finding, were substantially covered by the charge of the court.

The defendants, in argument, claimed error in the failure to charge in the language of the fifth request, as to what acts were necessary to establish in law a' re-entry by an owner who had been ousted. The request relates to the statute against selling disputed titles, and is obscure. The court understood it (and reasonably—for no other meaning seems consistent with the state of evidence or claims—) as a request to charge that if the plaintiff’s grantor was disseized when he conveyed to the plaintiff, and the plaintiff claims that after receiving this conveyance he took possession of the premises, he must show that he in fact retook actual possession. The request was properly refused. The court did charge that if the jury found that the plaintiff’s grantor was disseized at the time of conveyance to the plaintiff, their verdict must be for the defendants. The defendants cannot complain of this; it is more than they asked.

The requests to charge, including all that were made, cover some six printed pages. The charge extends over fifteen pages, and is open to the criticisms usually invited by undue length. This, however, as well as some occasional obscurity, is due in great part to an attempt to deal with the requests, many of which were unsuited to a clear presentation of the real issues. These issues were few: Was the grantor of the plaintiff disseized when he conveyed to the plaintiff? Did the deeds and other evidence, independent of the question of adverse possession, show ownership in the plaintiff? If so, had this ownership been terminated by a title through adverse possession acquired by the defendants ? If not, was the land in the actual, exclusive occupation of the defendants at the time of the alleged trespass ? These questions, except the one of the plaintiff’s ownership without reference to the question of adverse possession, all depended on the single question of fact,—-were the acts of the defendants in respect to the land in question such as under the circumstances of this case prove an ouster, or a title by adverse possession? The law necessary to enable the jury to pass upon these questions was stated by the court with sufficient accuracy.

The defendants select from the charge eleven passages as being erroneous.

That portion of the charge stated in the first passage was given in view of the conditions disclosed by the finding. The meaning of the language of the deeds in evidence, and their legal effect, was a question of law, and the court properly held that these deeds showed a title of record to the land described in the deeds, to be in the plaintiff. The identity of the land so described and the land in dispute, was a question, of fact for the jury; but it is stated in the finding that it was admitted that the land described in the deeds is the land in dispute, so that as to this fact there was really no controversy for the jury to settle. Under these circumstances, the omission of the court when charging that the title of record was in the plaintiff, to remind the jury that the identity of the land in dispute and the land to which a title of record was shown, was a question of fact for them, was a harmless omission.

The further and material question, whether the plaintiff’s predecessors in title were actually the owners of the land de scribed in the paper title, was left to the jury as a question of fact, as will appear when we deal with that part of the charge.

The second, third, fourth and fifth passages, relate to the law of adverse possession. The nature of adverse possession, as involved in the case on trial, was fully and correctly given. Huntington v. Whaley, 29 Conn. 891, 397, 398. The defendants’ brief suggests no ground of error in this part of the charge, except the claim that one passage implies taking a matter of fact from the jury, and another that a mere preponderance of evidence is not sufficient to sustain the defendants’ claim. These alleged implications, in view of the context, are fanciful. The court tells the jury that they are to take into account all the claims of the plaintiff and defendants, “ and to determine whether the defendants have shown you by a preponderance of evidence that they have had such necessary adverse occupation of the property for the period claimed.” And further, the jury were told: “ It is not a matter of law. It is a matter of fact for you to determine, whether these acts and all others relating to this claimed possession are sufficient in your judgment, shown by a preponderance of evidence, to vindicate the claim here of adverse possession.”

The sixth, seventh and eighth passages relate to the fact that the deed from Jeremiah Platt, the defendants’ predecessor in title in 1773, states that the southern boundary of the land conveyed is “ Samuel Burwell’s Meadow,” and the fact that the deed.from Isaac S. Baldwin, the defendants’ predecessor in title in 1819, states that the southern boundary of the land conveyed is the land of “ Samuel Burwell’s heirs; ” in connection with the admitted fact that the land described as “ Samuel Burwell’s Meadow ” and the land of “ Samuel Bur-well’s heirs,” is the land known as “Phillips’ Meadow ” claimed by the plaintiff, and the further fact that according to the record title Phillips’ Meadow belonged to Samuel Burwell at the time of his death a few years subsequent to Platt’s deed, and from 1778 to 1817, two years before Baldwin’s deed, belonged to Samuel Burwell’s heirs.

The court charges the jury, in substance, that the statements in these deeds amount to an admission on the part of the grantors that- the Round Meadow lot owned by them is bounded on the south by the Phillips’ Meadow lot owned by Samuel Burwell and subsequently by Samuel Burwell’s heirs. This passage must be read in the light of the context. The court had just charged the jury that the defendants’ claim that a mere paper chain of title does not constitute ownership, without possession being shown on the part of the owner or some grantor, was correct, but that this abstract proposition was immaterial unless it applied to the facts of the case; and if the jury found that the defendants’ predecessors in title had admitted title to be in the plaintiff’s predecessors, and so found the title or ownership established, that then it was not necessary for the owner to show actual exercise of possession, because the title draws possession unless the owner has been ousted of that possession. The court then refers to the evidence of such admission, especially the deeds of Platt and Baldwin, and tells the jury that the language of these deeds amounts to an admission as stated on the part of the grantors, and closes this part of the charge by reminding the jury that the general proposition is true that something more than bare paper evidence of title must appear to establish it, and leaving to the jury to determine whether title is shown to have been in the line of the plaintiff’s chain. This is substantially correct.

The defendants now claim that Platt and Baldwin were not their predecessors in title, because the defendants only claim title to the Round Meadow lot through Platt and Baldwin, and claim title to Phillips’ Meadow lot (the land in dispute) through Lewis Merwin, administrator, in 1845. This is a mistake. The administrator was the agent of the law to sell the title which Thomas Merwin had at the time of his death in the piece of land described in the inventory as Two acres and a half at Round Meadow, @$12, $80.” No other land was sold, and no subsequent deeds purport to convey any other land. It was not the administrator but Thomas Merwin, who was the defendants’ predecessor in title; and the deed which gave title to Thomas Merwin bounds the land conveyed on the south by the heirs of Samuel Burwell. This deed, as well as the prior deed of Jeremiah Platt, is the act of the defendants’ predecessor in title.

The defendants confuse their claims of title by adverse possession since 1869, and title by deed. The two claims are antagonistic, and must be considered each as distinct from the other. The title by adverse possession relates solely to Phillips’ Meadow,as a distinct piece of land acquired by wrongful acts of the defendants continued for fifteen years. The title by deed relates to the Round Meadow lot of two and one half' acres, which has come to the defendants by that name and description through a line of conveyances extending back to Jeremiah Platt in 1773. Their title by deed to Phillips’ Meadow, if any, is merely incident to their title to Round Meadow lot, and turns on a question as to the boundary of the latter lot. The designation of the lot by name and number of acres, is substantially the same in every deed from that of Jeremiah Platt in 1778 to that to the defendants' immediate grantor in 1876. The variation in language describing the boundary, begins in 1815. The prior deeds give the boundary as east on the beach and south on Samuel Burwell’s heirs, or Phillips’ Meadow; the subsequent deeds give the boundary as “ easterly and southerly on the beach.” A glance at the map shows that as a partial boundary this last is correct ; Round Meadow lot is bounded “ easterly and southerly on the beach;” it is also bounded easterly on Phillips’ Meadow; moreover, as a boundary of the land included in Phillips’ Meadow lot, the boundary is an impossible one, for Phillips’ Meadow is not bounded southerly on the beach. •

The real question between the parties, so far as the title by deed is concerned, was one of boundary. Upon this question the statements in the Platt and Baldwin deeds were evidence. Declarations of ancient persons in respect to boundaries are admissible. Norton v. Pettibone., 7 Conn. 319, 323; Higley v. Bidwell, 9 id. 446, 451; Wooster v. Butler, 13 id. 308, 315; Kinney v. Farnsworth, 17 id. 355, 362; Long v. Colton, 116 Mass. 414, 415. It is immaterial to the action of the jury, whether this evidence which they are to consider is called an admission, a declaration, or an act of ownership. That such evidence, in connection with the other evidence submitted to the jury, was sufficient to justify their finding the ownership of Phillips’ Meadow to have been in the plaintiff’s predecessors in title, does not admit of doubt. The documentary evidence not only showed the record title of the land to be in the plaintiff ; it also established certain facts competent to prove the ownership of the land. The fact that Samuel Burwell in 1777 treated this land as his own, by devising it to his son Benedict; that this will was probated and the estate administered; that Benedict treated this land as his own, by conveying it to his brother Samuel, bounding it on the north by the Round Meadow lot; that Samuel Burwell, 2d, and his grandsons so treated the land; that the adjoining proprietors of Round Meadow lot, in exercising their right of ownership over that lot, treated the Burwells as owners of the Phillips’ Meadow lot. All these acts are evidence of ownership and, in connection with the unquestioned record title to this very land, are sufficient to justify the finding of the ownership of Phillips’ Meadow in Daniel Merwin at the time Thomas Merwin became owner of Round Meadow lot. Ancient documents are admissible to prove ancient possession. Malcomson v. O'Dea, 10 H. L. Cas. 598, 614-616; Boston v. Richardson, 105 Mass. 351, 371; Greenfield v. Camden, 74 Me. 56, 63; Boston Water Power Co. v. Hanton, 132 Mass. 483, 484; Bristow v. Cormican, L. R. 3 App. Cas. 641; 1 Greenl. Ev. § 141, et seq.; Stephens Dig. of Ev. pp. 42,156. Such evidence is, in substance, evidence of acts of ownership and of facts tending to prove ownership, and, in many cases involving ancient possession, is the only evidence the nature of the case permits. Where, as in this case, it is coupled with an unquestioned title of record, the evidence is of a most satisfactory nature. While leaving the determination of fact to the jury, the court properly intimated its opinion that such evidence was sufficient to support a finding that Daniel Merwin was the owner of Phillips’ Meadow. Being the owner, he and his successors in title had lawful possession entitling them to maintain an action against any stranger who should injure their property, even if they did not prove an exercise of possession by acts of actual occupation. It is the law of this State that ownership of real property gives a right of possession as much as ownership of personal property; and ownership in one case draws after it possession as much as in the other. Bird, v. Clark, 3 Day, 272, 277; Williams v. Lewis, ibid. 498; Bush v. Bradley, 4 id. 298, 306. The possession involved in the fact of ownership is sufficient to maintain this action, if at the time of the injuries complained of the land was not in the actual, exclusive occupation of another. Church v. Meeker, 34 Conn. 421, 422; Fitch v. New York, P. & B. R. Co., 59 id. 414, 422. Such was the rule before the adoption of the Practice Act. The right of an owner to recover for injuries to his land or to Mm as owner, was then controlled by the form of action. Potter v. New Haven, 85 Conn. 520, 522. It is unnecessary in tMs case to consider the possible effect of the abolition of forms of action upon these distinctions that were formerly essential in order to preserve the peculiar office of each form of action.

The ninth and tenth passages relate to the alleged ouster of the plaintiff’s grantor at the time he conveyed to the plaintiff ; and are sufficiently accurate. Section 2966 of the General Statutes was first enacted in 1727. 7 Col. Rec. 105,106. The language then used, is “ disseized or ousted of the possession thereof by the entry,” etc. The termsdisseized or ousted ” are used in their technical sense. Sherwood v. Burr, 4 Day, 244. The “ ouster ” is the same as that which at common law disabled a grantor thus ousted from transferring Ms title to another; Goodman v. Newell, 13 Conn. 75, 77; and is the same as that which, if continued for fifteen years, would make a perfect title in the occupant. Sherwood v. Waller, 20 Conn. 262, 269.

The eleventh passage is found at the close of the charge, where the court briefly states the substance of the issues previous^ discussed; and tells the jury that if they find the defendants have had adverse possession for fifteen years “ prior to the date of the plaintiff’s deed from Munger,” their verdict should be for the defendants. The court should have said, “prior to the alleged trespass.” There was an interval of four months between these two dates. The court, not unnaturally, treated them as coincident in speaking of an adverse possession claimed to extend over a period of twenty-seven years. The error was immaterial and harmless.

The court admitted evidence of the payment of taxes by the defendant Andrew B. Morris during the five years, 1888, ’89, ’90, ’91 and ’92. The reasons wMch would justify that admission would require the admission of similar evidence for the years 1887 and 1893, wMch the court rejected. We do not tMnk, however, a new trial should be granted on account of this ruling. Payment of taxes is evidence on the question of adverse possession, because it tends to show that the occupier claimed the land as his own. Wren v. Parker, 57 Conn. 529, 531. In this case it was not claimed that taxes laid on the whole of the lot in dispute were paid; but that the assessors had placed in the list a lot, a small portion of which extended across the boundary of the land in dispute. Assuming that the payment of the extra five or ten cents of taxes apportionable to this small bit of the land in dispute, tended to show that the defendant Morris claimed the land in dispute as his own, rather than to show that the defendant did not care to contest, for the amount involved, the action of the assessors in including this bit of the disputed land within the limits of a lot the defendant did own, we think the defendants got the full benefit of such evidence by the admission of the payment of taxes for five years, and that the rejection of such evidence for the years 1887 and 1893 did not injure them. Especially is this true in view of the charge, in which the court tells the jury that the defendants’ claim, that for some six or eight years, from 1885 or 1886 onward, they paid the taxes on this property, and that that is regarded in law as powerful evidence upon the question of ownership j and also that the payment of taxes, as tending to prove the claim of ownership, is clearly admissible and is a circumstance the jury should take into account with the other proof on that question.

There is no error in the judgment of the Court of Common Pleas.

In this opinion the other judges concurred except Baldwin, J., who dissented.