| Conn. | Feb 15, 1862
An ouster is a wrongful dispossession or exclusion of a party from real property, who is entitled to the possession. Like all other wrongful acts, it involves a question of intent. It may be committed by one tenant in common against his or her co-tenant, and may be proved by any acts which show an actual intent to exclude the co-tenant permanently from his rights. Hence, although such acts as are consistent with an honest intent to account to his co-tenant for his share of the rents and profits, as the collection of all the rents, payment of all the taxes, occupation and enjoyment of the entire premises and the like, are termed “ equivocal,” because one may possess for all and be willing or compelled to account to all, other acts necessarily evince an intent to exclude and hold adversely to his co-tenants, such as refusing to account on the ground that the co-tenant has no right in the property, making explicit claim to the whole and occupying under an avowed or notorious claim of right to the whole, and denying the right of the co-tenant to possession, and refusing to acknowledge his right or to let him into possession upon demand made. But none of these constitute the ouster ; they are but evidence, more or less persuasive, of the adverse intent of the possession. It is sometimes said that as between tenants in common an actual ouster must be proved in all
But actual intent implies actual knowledge, and there can be no wrongful dispossession or wrongful exclusion, no adverse intent and adverse holding, where one is in the enjoyment of that which he honestly supposes is his, and has no knowledge that any other person has, or claims to have, a right to participate in the possession of it. A person who has received by inheritance from his father an estate, and is in the enjoy.ment of it, is in one sense holding adversely to all the world; but not in the sense in which the term is used in the law of disseisin. He has done and is • doing no wrongful act. He has not dispossessed any one, and is not wrongfully excluding any one of whose right or claim he has any knowledge. He is not guilty of any wrongful intent. Non constat, if any one has any right or claims to have any, but that if apprised of the claim in a reasonable and proper manner he will admit it. He is honestly in the enjoyment of an apparent clear right; he knows of no other right to which he should yield, and is conscious of no duty unperformed. Before such a man can be subjected to the cost and damage demanded in an action of disseisin, it is just that the demandant should apprise him with reasonable precision of the nature of his claim, and give him reasonable opportunity to determine his duty and form his intent. So are all the analogies of the law, and less
In this case the evidence of Mr. and Mrs. Beckwith and Mr. Carter prove merely a renting of the property, the ordinary casual speaking of it as hers, and the payment of taxes as imposed by the assessors. This is admissible but “ equivocal” evidence, and standing alone would not justify the finding of an ouster against a co-tenant. The plaintiff called the defendant as a witness, and she testified that the property was given her by her father, that she had occupied it as hers, and that no one had set up a title or claimed any right to it to her knowledge. In this she is not contradicted by the deposition of Mr. Newell. The letters of Mr. Newell are equivocal. They set up no specific title or specific claim to any real estate. One of them says that “ a part of the house and some of the land which you occupy belong to the estate of Mr. Abel Lewis; ” what part of the house or what land is not stated. Another speaks of “ rights belonging to the heirs at law which perhaps it is your duty peaceably to surrender.” There is no reasonable and proper statement of a title in himself to a specified share of specific property, and no demand of possession. On the other hand there is a request to be informed what she will give him if he will relinquish his claim, a hope to receive “ a satisfactory proposition,” and other expressions which indicate, not a desire to be let into possession of a specific interest in specified real estate as co-tenant, but to obtain money, ostensibly as executor, for some possible and indefinite claim which he can make if not bought off. Under the circumstances it was just and lawful that the defendant should be fairly apprised of the specific property and the extent of the interest claimed, by whom claimed, and in substance by what title, that she might decide whether to admit or contest the right. The evidence shows conclusively that she was not thus apprised, and had not denied any right which she could admit and ought to have admitted, and the nonsuit was properly granted.
In this opinion the other judges concurred.