Wilson v. Peck

39 Conn. 54 | Conn. | 1872

Seymour, J.

The petitioners brought their petition to the Court of Common Pleas, asking the court to order the sale of certain premises containing about a rood of land, situate in Greenwich. They aver that, subject to certain incumbrances, Mrs. Wilson is the owner in fee of three-fourths of the premises, and that Andrew J. Peck is the owner in fee of the other fourth. They base their petitipn on such title, and' on the statutes authorizing the courts ,to order the sale of real estate owned by several, upon the application of any of the persons interested therein. The Court of Common Pleas made a finding of facts, and dismissed the petition, and the - case comes before ns for review by motion for a new trial.

We think that there are several satisfactory grounds for affirming the decree of the Court of Common Pleas.

First, the title is not at all as the petitioners aver it to be. The title depends upon the validity and construction of the deed of Israel Peck, Senior, of March 29th, 1798. This deed is recited at length in the finding, and- if it is invalid, as the petitioners claim it to be, then indeed the title is as stated in the bill; but if that deed is valid, and conveys the fee to the grantees, then Mrs. Wilson has no such title as that set forth in the bill, and made the ground of the relief sought.

The deed is in several particulars informal and defective, but we think it is nevertheless valid, and conveyed the fee of the premises from Israel Peck to his brothers and sisters. The habendum is in the usual form of conveying the fee, “ to his brothers and sisters and their heirs forever, to them and their own proper use and behoof.” The word “ assigns” was probably omitted by design, for it is apparent that the grantor intended that the property should be unalienable in Ms brothers and sisters and their descendants, and that it should ever remain as a family burying ground, and he undoubtedly intended that the fee should pass from generation to generation of the Peck family, for the purpose of carrying out his purpose of creating a lasting family cemetery.

The argument of the petitioners is that the restriction of the use of the land, and the restraint upon its alienation, are inconsistent with an estate in fee simple, and that therefore such- estate did not - pass by the deed. Such restraints are certainly; as a general rule, inconsistent With the idea of a tenure in fee, and in general the restraining clauses are inoperative, where there are controlling words that pass the fee. But we are not prepared to say that, in a conveyance of land for the purpose of a burying ground, such restraints may not be valid. It must be admitted, however, that where the fee is conveyed there are difficulties in' the way of enforcing the application of the land to the intended use, if the grantee chooses to appropriate it to a different purpose. But that question does not arise in the case now under our consideration. The grantees under the de^d are content to carry out the intentions of the grantor. They do not seek to sell the premises, nor to appropriate them to any other use than that contemplated by the deed. Parties claiming title under the grantor, and standing in his place, are here seeking to treat the deed as void, and to cause to be disinterred the bodies of those buried in the ground, and to devote the land to purposes other than for burial. Prom tlie date of the deed, 1798, down to the present time, the premises have been used, occupied and possessed under the deed, and according to its. provisions. We have no hesitation in pronouncing the deed valid, and in holding that the fee passed to the grantees.

The petitioners also insisted in argument, that if the deed was not void, still it conveyed to the grantees only a right of burial as an incorporeal right, the fee remaining in the grantor. But the words of the habendum seem to us to be controlling words to carry the fee ; and besides, the grantor reserves .to himself and his heirs and assigns a right of burial in the premises, and a restricted right of pasture, which reservations are inconsistent with the idea of his retaining the fee in himself.

But the petitioners say, that, even if they have not the title set up in the bill, yet it appears that Mrs. Wilson has an interest in the premises, to wit, the right of pasturage and mowing which the grantor reserved to himself and his heirs, and the petitioners say that under the statutes on this subject such an interest authorizes them to demand a sale of the entire property, and the idea is, that by means of such a salo the right of burial and the right of having the bodies already interred remain on the premises will be destroyed, and the purchaser take an absolute and unlimited right in fee simple.

The statute of 1866, chapter 48,-seems to be broad enough in its terms to bring the case as thus presented within the jurisdiction of the court, with power to order the sale, for although parties have distinct and different interests in land, yet by that statute one party may compel the other to submit to a sale. Such an order involves an extraordinary exercise of judicial power, and in this case it would involve an exercise oi power wholly unwarranted. The- grantees under Israel Peck’s deed are owners in fee of a burying ground, which they are using as such, and wish to continue to use as such, and the petitioners, as part owners of a right to pasture the same grounds, insist upon the sale of the premises, whereby these grantees without their consent may be deprived of all legal interest in the burial place of tneir ancestors. Circumstances may exist of such entanglement of title as would justify the courts in ordering the sale of an interest in land without the owner’s consent, but the case must be a strong one, and the case made by this petition is not in any aspect of it one that warrants the interposition of the court to order the sale asked for.

Even if the title wei’e such as the petitioners state it to be in their bill, if Mrs. Wilson were owner of three-fourths of the ultimate fee, subject to a right of burial in the grantees and their heirs under Israel Peck’s deed, we doubt much whether any court would grant an order of sale to defeat such right of burial, after the parties had acted upon that right, and desired to retain it. Such an incorporeal right is property peculiarly entitled to protection, and although the statute in terms authorizes the court to order the sale of the entire property, the legislature could never have intended that such sale should be ordered against the consent of parties interested.

The statute of 1702 guarantees protection to 8.11 lands that have been granted to public and charitable uses, and are being occupied in conformity with such use. Treating this deed as tho petitioners treat it, as a mere dedication of the property to the grantor’s brothers and sisters and their heirs as a place of burial, and conceding that the fee was not parted with by the deed, yet such dedication ought, we think, to be protected, if not by the words.of the statute of 1702, yet certainly by its spirit and purpose.

We are clearly of opinion that the decree of the Court of Common Pleas is not erroneous, and that no new trial be advised.

The form of the proceedings by which this case comes before us is not appropriate to the case. A motion for a new trial is adapted to proceedings at law, and not to proceedings in equity. The statute provides that courts of equity shall cause the facts on which they found their decrees to appear on the record, and gives the party aggrieved by any decree a writ of error to the Supreme Court of Errors. The only mode of review by the Supreme Court of the proceedings of a court of equity is by motion in error or writ of error.

In this opinion the other judges concurred; except Carpenter, J., who was absent.