38 Conn. 256 | Conn. | 1871
Action of ejectment. The plaintiff claims title to the demanded premises by deed from Henry S. Wooster, as administrator, of the insolvent estate of Frederick Roberts, formerly) of Goshen, Connecticut, deceased. The deed is in due form of law, and bears date March 22d, 1869. Roberts died in 1845, leaving a widow and children, and was the owner of the premises at the time of his death. Immediately upon his death his widow and children took exclusive possession of the property, claiming it as their own, and retained such possession as heirs and widow of the deceased till March 30th, 1857. They then sold and conveyed their interest in the premises to bona fide purchasers for valuable consideration, by whom possession was taken and retained ; and the defendant as such purchaser by mesne conveyance is now in possession. The widow is still living. After the plaintiff had received his deed, and before the commencement of this suit, he informed the president of the defendant corporation of the fact that he had such deed, and demanded the possession of the premises. The company after the demand continued in exclusive possession under claim of right as before.
The first question which arises on these facts is whether, admitting the plaintiff’s title to be all that he claims it to be, the defendant has been guilty of a disseizin. The administrator’s deed does not convey the widow’s dower to the plaintiff. The deed is in terms subject to her right of dower, and is necessarily so subject whether expressed in terms or not. In Connecticut the widow is tenant in common -with the heirs before assignment to her of her dower. The defendant was then in possession under the widow’s title, and was tenant in common with the plaintiff, conceding for the present that the administrator’s deed conveyed to the plaintiff the title of
But in addition to the facts hereinbefore stated, it appears that the creditors of the deceased resided in the same county where the premises are situated, and knew that they constituted the estate of the deceased; administration was not taken out, nor did the creditors request administration, until April 17th, 1866. The only authority for granting administration was by virtue of a resolution of the General Assembly at its May session, 1865, as follows: “Resolved by this Assembly, that the court of probate for the district of Norfolk be and is hereby authorized to grant letters of administration on the estate of Frederick Roberts, formerly a resident of Goshen,
The statute now in existence, first passed in 1821, limits the time for granting administration to seven years from the death, subject to certain savings, none of which are claimed to exist in this case. The right to sell the lands of a deceased for the payment of his debts is purely a statute right, not recognized by the common law. In cases where administration is duly granted, there is no limitation by statute of a time within which the right must be asserted and exercised, and yet in such a case, Chief Justice Hosjier says in giving the opinion of the court in Griswold v. Bigelow, 6 Conn., 265, u a perpetual lien upon the lands of the deceased for the benefit of creditors would be a public inconvenience, and ought not to be sanctioned. Still it ought to continue a reasonable time, and not be defeated except by the neglect and laches of the creditors, and hence gross neglect or unreasonable delay should be held a waiver or extinguishment of it in all cases, and more particularly where the property has been disposed of for a valuable consideration.” In Massachusetts no time is limited by statute within which the administrator shall apply for liberty to sell land to pay debts of the deceased, but the courts of that state refuse to grant such liberty after the lapse of a very few years. 3 Mass., 542; 13 id., 162; 15 id., 58.
Now the only mode by which the creditors of Roberts deceased could procure the application of his real estate to the payment of these debts, was by means of an administration ; and such administration the law places within their power for the full period of seven years from his death. The defendant claims that if they neglect to resort to this mode of enforcing their quasi lien on the real estate for the period of seven years, and if they suffer that period of limitation to expire, they are bound by the statute, and that after the expiration of these seven years the heirs might rightfully sell, as they have sold, their interest in the property, and that the defendant, as a bona fide purchaser for value, ought to be protected against the assertion by the creditors.of their supposed rights, after so unreasonable a delay. The argument is that
It appears that all the creditors of Mr. Boberts resided in Litchfield county, and knew that the real estate demanded was part of his estate. They have suffered not merely the seven years allowed by the statute to pass by, but thirteen years more in addition to the seven, before they took any steps to assert their -rights over, this property. During .this time the premises have been openly bought and sold as free from incumbrance. The right of the creditors is a species of lien, and it is familiar law that liens may be lost by neglect to enforce them. In the case of Ricard v. Williams, 7 Wheat., 115, 119, the same question now under discussion arose in the Supreme Court of the United States, in relation to estate situate in Connecticut. This however was before the statute of 1821 limiting the time for taking out letters of administration, and before there was any statute on the subject. Judge Stout in giving the opinion of the court says, “ The question recurs whether a power of sale thus derived under the law, an'd not by act of the party, is to be continued as a perpetual lien on the land of which the intestate died seized, and capable of being called into life at any distance of time,
In the case of Ricard v. Williams, twenty-eight years intervened between the death of the deceased and the taking out of letters of administration on his estate. In the case at bar somewhat over twenty years intervened. If we give the fullest- effect to the resolution of the General Assembly of 1865, that resolution does no more than make the taking out letters of administration a lawful act, and in the case of Ricard v. Williams there was no statute of limitations in existence restraining the power of the court of probate, and the administration in that case was taken to be lawful.
On the authority then of the case of Rieard v. Williams, as well as from our sense of right and justice, we decide that the plaintiff has no title against the defendant. . In so deciding, we concede for the purposes of this case the full validity of the resolution of 1865, and merely say that since the death of Mr. Roberts rights have been acquired in the real estate
The Superior Court is advised to render judgment for the defendant.
In this opinion the other judges concurred.