author: Ellsworth, J.

text:
    Webb and others against The town of Rocky-Hill:

      Hartford,

    June, 1852.
    IN ERROR.
    County commissioners, to whom the laying-out or discontinuance of a highway is referred, are restricted in their action upon the matter referred to them, to the convenience and necessity of the highway; every other question in the case belonging to the county court.
    Where the convenience and necessity of a highway has been regularly acted upon, by the court and commissioners, and decided, the matter in dispute is res adjudicata, and no longer open to litigation.
    To sustain an application for the discontinuance of a highway legally established, it is incumbent on the applicants to shew new matter accruing since the establishment of such highway.
    This was a petition brought by Benjamin G. Webb and others, inhabitants of the town of Rocky-Hill, to the county court of the county of Hartford, in November, 1851, praying for the discontinuance of a highway therein described. The petition was dated October 24th, 1851, alleging, that said highway, since the laying-out and establishing thereof, has become and is unnecessary for the public use or convenience; and that the public interest and convenience require the same to be discontinued.
    Sundry individuals of the town of Rocky-Hill, with others belonging to the neighbouring towns, appeared, and, in the first place, filed a protest against the reference of the petition to the county commissioners, alleging the following facts and reasons:
    “1st, That said highway, mentioned in the petition, the discontinuance of which is prayed for, was laid out and established, by this court, at its August term, 1851, and by the consent of the parties, the 20th day of April, 1852, was fixed, by said court, as the day for opening the same for public travel, which day has not arrived, and the damages assessed were ordered to be paid on the first day of January, 1852; and was so laid out and established on the unanimous report and finding of the comity commissioners, that said highway was of common convenience and necessity, made and returned at said August term.
    2d, That said report and finding by the county commissioners, was made, after a protracted hearing, in which the town of Rocky-Hill was fully heard by witnesses, and by able counsel;—and presented, on said hearing, or had full opportunity to present, every fact, or consideration in opposition to said laying-out; all of which were heard, passed upon, and adjudged, by said commissioners in their said finding, and by this court, in its decree, establishing said highway.
    3d, That every fact or reason for the laying out said highway, which existed at the time of said hearing, or the establishment of said highway, has continued to exist ever since said hearing, and now exists; and that since said hearing and establishment, no new fact or reason has arisen against the continuance of said highway, which was not presented, or might have been presented and passed upon, at said hearing.
    4th, That if this court shall refer the question as to the convenience and necessity of said highway to the county commissioners, it will be identically the same question which has already been tried and passed upon, at said hearing, and not other or different, and the decision will depend upon the same facts and reasons which then existed and were presented, or might have been presented at said trial, and not other or different facts.
    5th, That said highway has never been opened or traveled, nor in any manner fitted or prepared for travel; nor have the damages assessed to the proprietors of said land been paid or satisfied, by said Rocky-Hill, or any part thereof; nor has any notice of this petition been served on the petitioners for said highway.
    6th, That the signers to said petition, are all inhabitants or residents of said Rocky-Hill, and have once had full opportunity to prove and urge every consideration against the establishment of said highway, which then existed, or which now exists; and that said petitioners are identically the same parties with the said town of Rocky-Hill, and have with her had their day in court, on the former trial of this cause.
    7th, That your remonstrants are deeply interested in the continuance of said highway, and in its being fitted and prepared for public travel; and some of them have expended large sums of money, on the former trial and hearing, to obtain the laying-out and establishment of said highway; and they pray this court to protect them from the expense and the hardship, and the hazard of another trial of this same identical question on the same facts,—without the existence of any new facts.
    8th, That your remonstrants who are inhabitants of said Rocky-Hill, object to the discontinuance of said highway, upon the further ground also, that said town must pay the damages assessed for said highway, even if the same were to be discontinued.
    Wherefore, the undersigned pray, that, for the reasons above set forth, and for other good and sufficient reasons, that said petition be not referred to the county commissioners; and that your honor will enquire into the above facts, and on finding them true, will order and decree, that said petition be dismissed.”
    With this document, called a protest, there was a remonstrance, filed by the town of Rocky-Hill, and sundry individuals, stating the same matters, with some variations and additions, as the protest contained. Among the matters alleged in such remonstrance, it was distinctly averred, “that the highway established by the county court, is the same highway mentioned in the petition of Benjamin G. Webb and others, the discontinuance of which is therein prayed for, and not other or different; and that every fact, reason, or matter and thing touching the laying-out of said highway, and the convenience and necessity thereof, was duly presented, or might have been presented, before the commissioners, at their hearing of said petition, and was passed upon and tried, at that time, by said commissioners, in their finding, and by said court, at the establishment of said highway and that every fact, reason, matter and thing, touching or affecting the laying-out of said highway, which existed at said hearing and establishment, continued to exist to the time of bringing, said petition, and did then exist; and that since said hearing, no new fact, reason, matter or thing, against the continuance of said highway, had arisen or taken place at the time of bringing said petition of B. G. Webb and others, which was not presented and passed upon, or might have been presented and passed upon, at said hearing; and that the subject matter of said petition, having been once fully heard and passed upon, by said commissioners and said court, and fully tried and decided as aforesaid, no further or other trial ought to be had of the same identical matter; and that said petition ought therefore to be no further heard, but that the same ought to be dismissed, and struck from the docket.”
    The petitioners, in their replication, averred, that said highway, at the time of bringing said petition, had become and was of no public use, convenience or necessity; and that, at said time, public convenience and necessity required its discontinuance.
    The county court, at its term in November, 1851, found, that Nehemiah Stevens and others brought their petition to said court, at its March term, 1851, against the town of Rocky-Hill, praying for the laying-out of a highway in said town; which was referred to the county commissioners, who, after due notice and a full hearing of all the parties in interest, made their report in writing to said court, at its August term, 1851, laying out the road mentioned in said petition, and finding said road to be of public convenience and necessity; which report was, by said court, accepted; and said court ordered the damages assessed by said commissioners, to be paid, by the 1st day of January then next, (but which are still unpaid,) and said road to be opened by the 20th day of April following.
    And the court further found, that the highway which the petitioners, in the present case, ask to have discontinued, is the same highway, so laid out by this court, at its last term; and that since the laying-out of the same, no fact has occurred, and no fact or reason has been shewn to this court, and none exists, to prove that said road, so laid out, is not now as much a matter of convenience and necessity to the public, as when the same was laid out and established as aforesaid; and that no reason now exists, why said road should be discontinued, that was not, or might not have been, shewn to said commissioners, as a reason why it should not have been laid out.
    The court further found, that said road has never been made or opened for public travel; and that the present petitioners for a discontinuance thereof, are all inhabitants or residents of the town of Rocky-Hill.

    And upon the facts so found, the court was of opinion:
    1st, That all the facts in this case, upon which it might

      otherwise be the duty of the commissioners to pass, have been already passed upon, by said commissioners, and adjudicated, by the court.
    2d, That the petition brought to this court, for a discontinuance of said road, is in the nature of a petition for a new trial, and should set forth such new matter, accruing since the laying-out of said highway, as would justify a reversal of the doings of said commissioners and of said court.
    3d, That if the commissioners, on the facts so found, should overrule the decision of the commissioners in laying out said road, if not irregular, their conduct would he “improper,” within the meaning of the statute; and this court is not required to refer said petition to said commissioners, to do an act, which, if clone, would be a good ground for setting aside their report:
    And that said petition should, therefore, be dismissed.
    To obtain a reversal of this decision, the petitioners filed their motion in error, in pursuance of which the record was brought before the superior court, and was continued therein for the advice of this court.

      Fellowes, for the plaintiffs in error.

      Welles, for the defendants in error.
   Ellsworth, J.

This was a petition, brought by sundry inhabitants of Rocky-Hill, describing particularly a certain highway in the town, which, they say, has become and is of no use, and ought to be discontinued. The town is cited to appear and defend. Sundry individuals belonging to the town, joined by others of neighbouring towns, appear for that purpose; and first, they file a protest, and afterwards, a plea or answer, from which it appears, that some of the respondents brought their petition to the county court of the county of Hartford, at its March term, 1851, against said town of Rocky-Hill, praying for the laying-out and establishing of this identical highway, now said to be no longer useful or wanted. That petition was granted, the highway was found to be necessary, by the commissioners, and was duly laid out. The report was accepted, and the highway established; damages to be paid on or before the 1st of January, 1852, and the road to be opened on or before the 20th day of April, following. It will be perceived, that the present petition was brought before the money was paid, if ever, and before the damages were made payable.

The respondents, in their defence, insist, that the matter now asked to be adjudicated, is res adjudicata; and in their pleadings, they say, “Every fact or reason for the laying-out of said highway, which existed at the time of the hearing, on the establishment of said highway, has continued to exist ever since that hearing, and now exists; and that since said hearing and establishment, no new fact or reason has arisen against the continuance of said highway, which was not presented, or might have been presented and passed upon, at said hearing;" and “that if this court shall refer the question as to the convenience and necessity of said highway, to the county commissioners, it will be identically the same question which has already been tried and passed upon, at said hearing, and not other or different; and the decision will depend upon the same facts and reasons which then existed, and were presented, or might have been presented, at said trial, and not other, or different facts.”

These facts and allegations of the respondents are not denied, by the petitioners, in their replication, otherwise than it is alleged in the replication, that at the time of bringing this last petition, said highway had become and was of no public use, convenience or necessity; and that, at said time, public convenience and necessity required its discontinuance, and therefore, the county court had no jurisdiction to enquire into said matter, but the petition must of necessity go to the commissioners; and they alone can decide how this fact of convenience and necessity is.

Now, this replication does not, in substance or form, deny the facts set up in the respondents’ plea—facts on which they rely for their defence. As we understand it, the replication passes by all this, and insists, that the highway is not now necessary, and ought not to be continued, and therefore, the commissioners must proceed to examine and decide whereas the respondents insist, in their pleadings, that this very question, if it can be, has been adjudicated and finally settled, and therefore, as matter of law, should not be further controverted. If the petitioners are right in the claim, that the present necessity of the highway is the question in dispute, it is clearly a question for commissioners; but if, as the respondents claim, the issue tendered is the conclusiveness of the former trial, they are right, and it is a preliminary question for the court.

Were the question of the effect of that judgment to be raised before the commissioners, as the petitioners insist, we apprehend they would not consider it, so as to allow it its full legal efficacy, if indeed any at all. They have power to consider only the convenience or necessity of the highway asked to be discontinued. This is the very language of the statute. P. 425. § 31. Every other question belongs to the county court, as if there were no commissioners in the case. The commissioners obviously proceed in their enquiry upon original evidence, and not upon the opinion of other commissioners; and if they think a highway laid out yesterday, by their predecessors in office, was incorrectly found to be necessary, they must, without a single change of any circumstance, discontinue it, and the next board may lay it out again, and the next discontinue it; each acting, and each sworn to act, according to their respective convictions of the convenience and necessity of the road. Now, we think the question, raised is proper to go to the court, and only to the court. Has the same matter, cause and thing been decided? Or, in other words, has the same cause of action now presented, been adjudicated, on a former trial? If it has, all must agree, that it cannot be again brought into dispute. A bill in chancery, dismissed on its merits, is res adjudicata; so the matter stated in a writ of habeas corpus, unless there arise something new; so in the matter of a divorce. The form in which the res adjudicata was had, is not so important as the fact. Wherever the court can see, from the record, that by the former trial, the present question was settled, the dispute is no longer open to litigation, and the court is bound to arrest the proceeding, whether the parties wish it or not. The court owes a duty to the public to prevent trial after trial, without any new matter or cause for it, lest there should be no end to litigation.

This, we think, is substantially, the present case. The highway had but just been laid out, after an expensive and protracted struggle, before commissioners, and in the court; and the pleadings admit, and the court has found, in the language of the protest, that all the facts, reasons and circumstances are the same exactly, and no other, than those which the county commissioners passed upon, when the highway was established; and that the questions are identically the same. Now, if this is not, in the most exact sense, a case of res adjudicata, it is sufficiently so, to justify the court in dismissing the petition. If one trial will not suffice, how many will? unless we are to sanction and encourage endless litigation.

The county court finds, as a reason for not granting the petition, first, “that all the facts in the case upon which it might otherwise be the duty of commissioners to pass, have been already passed upon, by said commissioners, and adjudicated by the court; secondly, that the petition brought to the comity court for a discontinuance of said road, is in the nature of a petition for a new trial, and should set forth such new matter accruing since the laying-out of such highway as would justify a reversal of the doings of such commissioners and of said court. Thirdly, if the commissioners, on the facts so found, should overrule the decision of the commissioners in laying-out said road, if not irregular, their conduct would be ‘improper,’ within the meaning of the statute; and this court is not required to refer said petition to said commissioners to do an act, which, if done, would be a ground for setting aside their report.” These remarks are entitled to great respect.

It is said finally, this is a case where the plea of res adjudicata cannot, by legal possibility, be introduced, as the last petition speaks from a date after the former. Were this true, it does not follow, that the county court did wrong in not entertaining the petition, under the circumstances. But is it entirely certain, this objection is well founded? If the facts, reasons and circumstances, and the question itself are identically the same, and no other, as the protest says, and the court finds, how much is there left, after this, for further trial and adjudication? Nothing substantially; and this is enough. We will not say, that in a proceeding in court, where exact technical rules of pleading are to be observed, a plea of res adjudicata, in such a case as this, might not possibly be open to criticism; but we receive the protest and answer as sufficient and proper, in a case situated as this is, to authorize the court to pursue the course adopted.

We advise the superior court, that there is no error in the judgment complained of.

In this opinion all the judges concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Church, Ch. J.

license: Public Domain

text:
    Dodd against Seymour:
    IN ERROR.
    Where A and B, owning adjoining lands, entered into an agreement in writing, by which they mutually stipulated, each to lay out a road of a certain width, through his own land, and then B agreed to convey to A twenty feet of land, describing it; on a bill in chancery brought by A against B for a specific performance of B's agreement to convey the land, it was held, 1. that it did not appear, that the laying-out of the road was, in any way, the inducement to such agreement of B, or that it was such a special benefit to B, or injury to A, as to constitute a legal consideration; 2. that a court of equity will not compel a specific performance of an agreement, though fairly made, and upon such a legal consideration as would be sufficient to support it, in an action at common law, if the agreement be not explicit, or the consideration inadequate.
    Where the court, on a bill in chancery for the specific performance of such agreement on the part of B, passed a decree, ordering B to execute and deliver to A a good deed of the land in question, with the usual covenants of seisin and warranty; it was held, 1. that the import of such agreement was, to convey the land by deed, so as effectually to transfer to A an unincumbered title in fee; 2. that to effect such transfer, a deed with such covenants, was not necessary; 3. that as the decree transcended the agreement, it was erroneous.
    This was a bill in chancery, brought by Horace Seymour against James Dodd, setting forth an agreement between the parties, and praying for a specific execution thereof. The agreement was in these words:
    “We, the subscribers, agree to lay out a road running from Washington street, Eastward, to intersect a new road laid out by Horace Seymour; said road is to be fifty feet in width, and the North line to start from the South end of James Dodd’s corn-house, and taking fifty feet from the South end of said Seymour’s lot; and said Dodd is to deed to said Seymour twenty feet of land on the East side of his lot, running from the South end to the North, adjoining said Seymour; and the road is to be laid out, and fenced, the coming fall.

      Hartford,

    June, 1852.

      July 10, 1842. (Signed.) James Dodd,

      Horace Seymour.”

    The prayer of the bill was, that the defendant, by some proper and legal instrument, should be ordered and decreed to convey to the plaintiff the aforesaid land.
    The cause was heard, upon the bill and the defendant’s answer, at the January term, in Hartford county, 1852.
    The court, after finding the agreement, and the neglect of performance, on the defendant’s part, passed a decree, ordering the defendant, under a penalty of 300 dollars, to make, execute, acknowledge according to law, and deliver to the plaintiff, by the 1st day of August then next, “a good deed, with the usual covenants of seisin and warranty, of the piece of land specified in said writing.”
    To obtain a revision and reversal of this decree, the defendant filed his motion in error.

      Welles and Fellowes, for the plaintiff in error,
    contended, 1. That the decree was erroneous, because the defendant was ordered to execute a contract different from the one stated in the bill; that is, to execute a deed with covenants, when the contract stated, is satisfied by a deed without covenants. Co. Litt. 7. a. 4 Kent’s Com. 461. Nixon v. Hyscrott, 5 Johns. R. 58. Van Eps v. Schenectady, 12 Johns. R. 436. 442. Ketchum & al. v. Evertson, 13 Johns. R. 359. Gazley v. Price, 16 Johns. R. 267. 269. Parker v. Parmelee, 20 Johns. R. 130. Fuller v. Hubbard & al. 6 Cowen, 13. Tinney v. Ashley, 15 Pick. 546. Mead v. Johnson, 3 Conn. R. 592. Hill v. Hobart, 16 Maine R. 168. Little v. Paddleford, 13 N. Hamp. 174.
    2. That neither the bill nor the finding shews any consideration for the contract; and a court of equity will not decree the specific performance of a contract, which is without consideration. 2 Sto. Eq. p. 113. § 787. p. 121. § 793. a. 2 Sw. Dig. 21, 2. Colman v. Sarrel, 1 Ves. jun. 55. And the consideration must be distinctly alleged in the bill: it cannot be made out, by inference. Shepard v. Shepard, 6 Conn. R. 37. Cady v. Cadwell, 5 Day, 67. Wright v. Dame & al. 22 Pick. 55.
    3. That the contract stated is too indefinite to be the subject of a specific execution, both as to the part to be performed by the defendant, and also by the plaintiff. Colson v. Thompson, 2 Wheat. 336. 341.
    4. That the decree, if otherwise unexceptionable, is not sufficiently specific, as it does not specify the covenants to be executed; whether covenants of seisin of a life estate, or of an estate in fee simple; whether the warranty shall be special, or general—against the party’s own acts, merely, or against all persons.
    5. That the decree grants relief not prayed for in the bill, viz. covenants of seisin and warranty. There is no prayer for general relief. The only prayer is, “to convey the land.” This may be clone without covenants; and is no more effectually done with covenants than without them. Simms v. Guthrie, 9 Cranch, 19. Driver v. Fortner, 5 Porter, 9.

      Parsons, for the defendant in error,
    contended, 1. That the contract on the part of the defendant, (plaintiff in error,) was sufficiently certain. It is to deed twenty feet of land, describing it. It is an elementary principle, that where there is any doubt as to the construction of a covenant, it is to be taken in a sense most strongly against the covenanter. Esp. Dig. 271. But secondly, this contract is free from doubt. To deed, means to convey—i. e. to transfer the title, by deed. To sell land, is to sell it in fee simple. Hughes v. Parker, 8 Mees. & W. 244.
    2. That a sufficient consideration appears on the face of the contract. It contains mutual covenants. The stipulation on the part of the defendant, is in consideration of that on the plaintiff’s part. 2 Kent’s Com. 465.
    3. That the decree is in pursuance of the contract. It only carries that contract into effect according to its true and correct import.

      4. That the decree is sufficiently specific.
    5. That the relief granted is only co-extensive with that sought by the bill. The bill asks for a specific execution of the contract. This, and this only, the decree requires of the defendant.
   Church, Ch. J.

This bill asks for the specific execution of a certain part of a written contract, entered into between these parties;—a stipulation by the defendant, to convey to the plaintiff twenty feet of land, as described in the agreement, dated July 10, 1842.

The first difficulty which meets us, is, that it does not appear from the face of the agreement itself, nor from any averment in the bill, nor by the finding of the court, that there was any consideration for this undertaking by the defendant. It is true, that the court, in its finding, referring to the allegations and facts in the bill, speaks of them as showing a consideration. An inspection of the agreement and the bill will shew, that in them, no consideration appears, or is averred; and we do not well see how any can be inferred.

The parties mutually stipulated, each to lay out a road through his own land, and, so far as we can see, for the mutual and equal benefit of both; and then the defendant, Dodd, as an independent stipulation, agrees to convey to the plaintiff the land in question. Why? It does not appear, that the laying-out of the road was, in any way, the inducement to this promise, or that it was such a special benefit to the defendant, or injury to the plaintiff, as to constitute a legal consideration.

A court of equity is not bound to compel a specific performance of a contract, even fairly made, and upon such legal consideration as would be sufficient to support it, in an action at common law. A consideration must not only exist, but it must be adequate, to induce a court of equity to decree a compulsory performance; and the contract must be so explicit as not to leave the court to conjecture. 1 Madd. Ch. 326. Peacock v. Monk, 1 Ves. 133. Underwood v. Hitchcock, 1 Ves. 280. Graham v. Graham, 1 Ves. jun. 275. 18 Ves. jun. 149. 2 Sto. Eq. 54. 76. 2 Sw. Dig. 21. 22. Seymour v. DeLancy, 6 Johns. Ch. R. 232.

2. We cannot resist the objection made by the defendant, to the decree of the court requiring him to convey the land in question by a deed, with covenants of warranty, seisin, &c. This is going beyond a decree for specific performance; it requires the defendant to perform that which he never agreed to do. His agreement was only to deed, that is, convey, the land to Seymour, by deed. The import of this agreement, was that the land should be so conveyed, by deed, as effectually to transfer to him an unincumbered title in fee.

If the defendant had such a title, a release or quit-claim deed would be as effectual to transfer it, as a deed with covenants; and if he had not such title, a deed with covenants would not transfer it. Dart v. Dart, 7 Conn. R. 250.

In the case of Van Eps v. The City of Schenectady, 12 Johns. R. 436. it was decided, that an agreement, on a sale of land, to execute a deed, was satisfied, by executing a deed without covenants. The doctrine of that case was confirmed, in the case of Gazley v. Price, 16 Johns. R. 267. And the authority of these cases and the principle recognized by them, was expressly sanctioned, by this court, in the case of Mead v. Johnson, 3 Conn. R. 592. This is sufficient for us, although we believe the same doctrine has been received by several of our sister states.

It does not appear but that the defendant had, and now has, an unincumbered title in fee to the land in question. And if this was so, it was said in argument, that a deed with covenants would work no injury to the defendant, while it would afford a legal remedy to the plaintiff, if the defendant had no such title; and therefore, the decree, in this respect, was equitable. “In hæc fœdera non vent" is an answer to this suggestion. But in such case, a compliance with the decree made in equity, would forthwith subject the defendant to an action at law. The party might have had other good reasons for refusing to make such a bargain; and the court cannot substitute it now for the one in fact made. It would be an essentially different contract.

If the defendant is made to insert covenants in his deed, he not only binds himself, but his heirs after him. He, then, not only contracts with the plaintiff, but he contracts with his assigns in all time to come.

With these views, we are brought to the opinion that the decree of the superior court is erroneous.

In this opinion the other judges concurred, except Ellsworth, J., who was disqualified under the act approved June 29, 1852. sect. 4.

Decree reversed.


text:
    Seymour against The town of Hartford.
    Grants or donations for religious and charitable purposes, made under the statute of 1702, providing that they shall forever be free from taxation, cannot, by its repeal, be subject to taxation.
    But it is a very high act of legislative power for one legislature to grant an exemption from all future taxation, so as effectually to tie the hands of subsequent legislatures, under any and all emergencies.
    And to bring the case within the principle above stated, the donor must, by the express terms of the grant, impress upon the property conveyed, a perpetual sequestration, for the maintenance of the ministry, or some other public and charitable use specified in the statute.
    Therefore, where the grant was to an ecclesiastical society, habendum “to them, and their successors, forever, as a good, sure and absolute estate in fee simple, without any manner of condition;" it was held, that this grant did not come within the statute, either by its terms, or by any implication arising from the character and powers of the grantee. [Two judges dissenting.]
    This was a case agreed upon, by the parties, and submitted to the court for its decision thereon, pursuant to the statute, approved June 24th, 1848.
    The case embraced the following facts. On the 7th of July, 1762, Anne Burnham, then of Hartford, in consideration of her love, good will and regard for the grantees, by a deed of that date, conveyed unto the South Congregational Church or Society, in the town of Hartford, now known as the Second Ecclesiastical Society of said town, a piece of land situated in that town, containing about four and one-half acres, then known as the Buckingham Homestead.

       On the 1st day of July, 1782, said society, having in their actual possession and occupation the North half of an acre of said homestead, lying at the extreme South end thereof, did, by a committee authorized to dispose of the same, by demise or otherwise, for the benefit and best advantage of said society, lease, for the term of 999 years, said half acre, with the appurtenances, to Jonathan Chapman, the lessee covenanting to keep the premises in repair, and to surrender them, on his failure to pay the stipulated rent. At some time previous to the 13th of October, 1812, said society repossessed themselves of the South moiety of the half acre so leased to said Chapman, and, at the time last mentioned, leased the same, with the appurtenances, to Robert Seyms, for the term of 969 years, upon the same conditions and with the same covenants as were contained in said Chapman’s lease. This land, with the buildings thereon, has been conveyed, by sundry quit-claim deeds of said Seyms and his assigns, to the plaintiff, in whose possession and occupation it now is.
    Hartford,
    November, 1851.

      On the 1st of May, 1792, said society, being fully possessed of the South half acre, part of said homestead, adjoining to the land leased to said Seyms, leased it to Joseph Bull, for the term of 999 years, upon the same conditions, and with the same covenants on the part of the lessee, as were contained in said Chapman’s lease. The South moiety of the half acre last described has, by sundry mesne conveyances, become vested in the plaintiff, in whose possession and occupation it now is.
    The North or other moiety of said half acre, last described, was, by the executors of said Bull, under-leased and assigned, for the unexpired part of the term, to Lewis Terry, it being provided in the assignment, that the rent of the premises should be paid to said society; and on the 13th of March, 1816, by a quit-claim deed of that date, said Terry surrendered his interest to said society; and the next day, said society leased the same land to said Terry anew, by a lease containing the same conditions and covenants on the part of the lessee as in said Chapman’s lease. By divers quit-claim deeds of said Terry and his assignees, this property has been conveyed to the plaintiff, in whose possession and occupation it now is.
    The buildings on the above-named three adjoining pieces of land, now held by the plaintiff, have been by him greatly repaired and much enhanced in value; and the plaintiff has paid, and still pays to the society, the annual rent due upon said lands; and said rents ever have been, and still are, applied for public and pious uses, and for the support of the gospel ministry.
    Neither said lands, nor the buildings thereon, were taxed, or assessed for taxation, by the authority of the town of Hartford, previous to the year 1821. But since the year 1823, and particularly in the years specified in a schedule made a part of the case, the plaintiff has paid taxes of divers amounts, to their agent, the collector of the town of Hartford, upon the buildings situated upon the aforesaid leased lands.
    The plaintiff claimed, that the assessment of taxes upon said buildings was illegal, and the payment thereof void; and that he was entitled to recover of the defendants, in an action at law, the amount so paid. This claim was resisted, by the defendants.
    The case was argued before this court, at the meeting of the judges to revise their opinions, in November, 1851, by L. F. Robinson for the plaintiff, and T. C. Perkins, for the defendants.
    In behalf of the plaintiff, it was insisted, 1. That by the deed of Anne Burnham, the land in question was granted “for the maintenance of the ministry of the gospel,” or for some “other public and charitable use,” or was “sequestered to pious uses,” within the meaning of the statute in force at the time of the grant.
       First, a grant to public, pious and charitable uses, means simply a grant to public, pious and charitable purposes or objects. It need not be a technical conveyance to uses, or to a trustee for the benefit of a cestui que use. The conveyances mentioned in Osborne v. Humphrey & al. 7 Conn. R. 335. and Parker v. Redfield, 10 Conn. R. 490. were not technically conveyances to uses: they merely specify the purpose of the grant. Secondly, a grant to a religious or charitable institution, is, without any further specification of its objects or purposes, a grant to pious or charitable uses. Under the English statute of charitable uses, (43 Eliz. cap. 4.) such grants have been sustained. Also, in such of the United States as have recognized the validity of grants to charitable uses, as a common law principle. Hornbeck's exr. v. American Bible Society, 2 Sandf. Ch. R. 133. Cammeyer v. United German Lutheran Churches, Id. 186. Burr’s exrs. v. Smith & al. 7 Verm. 241. In all these cases, the grants have been made directly to a religious or benevolent institution, without any intervening trust, and without specifying the object of the gift otherwise than by necessary implication. The South or Second Ecclesiastical Society was, at the time of the grant, and ever since has been, an association, organized and existing for pious purposes only; that is, “for the maintenance of the ministry of the gospel.”
    2. That so far as the land is concerned, the present case is not distinguishable from Osborne v. Humphrey & al. ubi sup. and Landon v. Litchfield, 11 Conn. R. 251.
    3. That the buildings are a part of the land, and equally exempt from taxation. Osborne v. Humphrey & al., Parker v. Redfield, Hart v. Cornwall, 14 Conn. R. 228.
    For the defendants, it was contended, 1. That the statute of 1702, exempting certain property from taxation, being in derogation of the common law, must be construed strictly. Parker v. Redfield, 10 Conn. R. 498. Providence Bank v. Billings, 4 Peters, 561.
    2. That to bring the case within the statute, the purposes of the gift must be distinctly specified in the instrument. A parol limitation of a use, is not valid; and if it were, none is shewn in this case. Here, it is not expressed in the deed, that the land is given for pious uses. On the contrary, the deed, as if to repel any such implication, declares the gift to be “without condition." Looking only at the conveyance and the documentary proof, the plaintiff fails to bring his case within the statute. This ought to end the case; for it was no part of the design of the statute to change the rules of evidence, or the requirements of law as to the mode of conveying real estate, or declaring its uses.
    3. That there are no other sources of evidence, which will sustain the plaintiff’s claim. It may be said, that the conveyance is to an ecclesiastical society. The first answer to this consideration is, that if the legislature had intended to make the mere character of the grantee the test, it would have been easy to say so. But this it has not said. Another answer is, that for the purpose of exemption, there is no necessity of any conveyance to such a society: a transfer to trustees would be equally available.

         The following is a copy of the deed.
      “To all People, to whom these Presents shall come: I, Anne Burnham, of Hartford, in the County of Hartford, and Colony of Connecticut, in New England, Widow, send Greeting:
      “Whereas it was the true intention and real purpose of my son Joseph, Buckingham, Esqr., of said Hartford, deceased, to have given unto the South Congregational Church or Society, in said Town of Hartford, the House and Homestead in said Town where I now dwell, containing about four acres and a half, more or less; bounded East and North on the Highway, West on the land of Aaron Bull, and South on Daniel Sheldon's land; and, while making his last will and testament to that purpose, and before he had fully completed the same, was suddenly removed by death; and the said estate having thereby fallen unto me, as the next of kin unto the said deceased; and being willing and desirous that the good intentions and purpose of my said son should take effect, and for the consideration of the love, good will and regard which I have and do bear unto the said Church and Society, I do therefore, by these presents, fully, freely and absolutely, give, grant, release and confirm unto the said South Church or Society, called Congregational, and to their successors forever, all the aforesaid House, Homestead and premises, with their appurtenances: To Have, and to Hold unto them, and their successors forever, as a good, sure and absolute estate in fee simple, without any manner of condition: in witness whereof, I have hereunto set my hand and seal, the seventh day of July, A. D. 1762.
      Her
      ANNE X BURNHAM.”

       Commonly known as the statute of 1702, as its first appearance in the statute book is in the revision of that year.

   Ellsworth, J.

In this case, we think judgment should be rendered for the defendants. In coming to this result, we do not mean to overrule the cases heretofore decided by this court, referred to at the bar; for whatever might be our opinion upon the question of the exemption of property from taxation, were it an open one, it is now too late to contend, that grants, or donations for religious and charitable purposes, made under the statute enacted at some period before 1702, which provides, that they shall forever be free from taxation, can, by its repeal, be subject to taxation, as if the statute had never existed. It is certainly a very high act of legislative power, for one legislature to grant an exemption from all future taxation, so as effectually to tie the hands of future legislatures, under any and all future emergencies. But this has been held to be properly done; and it has been sanctioned, by the highest judicial authority of the land. It was so held in the supreme court of the United States, in Gordon v. Appeal Tax Court, 3 Howard, 133. Terrett v. Taylor, 9 Cranch, 43. Fletcher v. Peck, 6 Cranch, 87. Dartmouth College v. Woodward, 4 Wheat. 578. In these cases, grants were held to be in the nature of contracts, within the clause of the constitution of the United States, which prohibits the states from passing laws impairing the obligation of contracts. Such irrevocable exemption from taxation has been repeatedly sanctioned in our own courts, and in other state courts. We refer to Atwater v. Woodbridge, Osborne v. Humphrey, Parker v. Redfield, London v. Litchfield, Hart v. Cornwall, Derby Turnpike Co. v. Parks, Enfield Bridge Co. v. Hartford and New-Haven Railroad Co., The same v. Connecticut River Company, East-Hartford v. Hartford Bridge Company, in our reports; and to Fellows v. Pinney, 13 Verm. R. 526. 15 Verm. R. 26. Armington & al. v. Barnet & al. 15 Verm. R. 745. 752. Brewster v. Hough, 10 N. Hamp. 138. 142. & seq. Backus v. Lebanon, 11 N. Hamp. 20. Charles River Bridge v. Warren Bridge, 7 Pick. 344. S. C. in err. 11 Peters, 420. 576. Chesapeake and Ohio Canal v. Baltimore and Ohio Rail-road Company, 4 Gill & Johns. 1. Boston Water Power Company v. Boston and Worcester Rail-road Corporation, 23 Pick. 360. 11 Leigh, 42. 76. Other cases might be cited.

While, however, we say this much, we would be equally explicit in declaring our intention not further to extend this exemption from taxation. We think the present case is altogether distinguishable from others, and on that ground place our decision. In the cases in our own court, the donor had, by the express terms of the grant, impressed upon the property, a perpetual sequestration for the maintenance of the ministry, &c. He declared what should be the exact and exclusive object of the grant, which we hold to be entirely indispensable; for the language of the statute is, “that all such lands, tenements, hereditaments and other estates, that either formerly have been, or hereafter shall be, given and granted, either by the General Assembly of this colony, or by any town, village or particular person or persons, for the maintenance of the ministry of the gospel, in any part of this colony, or for schools of learning, or for the relief of poor people, or for any other public and charitable use, shall forever remain and be continued to the use or uses to which such lands, tenements, hereditaments, or other estates have been, or shall be, given and granted, according to the true intent and meaning of the grantors, and to no other use whatever; and also be exempted out of the general lists of estates, and free from the payment of rates.”

Nothing of this is to be found in the deed of Mrs. Burnham; but, on the other hand, the deed expressly declares the gift is a sure and absolute fee simple, without any manner of condition. Of course, the grantor does not require, that the property should he sequestered or kept or used, for the maintenance of the ministry; nor does she declare any particular intent whatever, unless the general character and corporate powers of the society imply one; which we think, is not the case. Nothing of this can be ascribed to the law. It is enough to allow the grantor to do this, if it is her desire; and if she will not do it, the deed cannot be held to come within the provisions of the statute.

We are unable to distinguish this grant from any absolute purchase made by the society generally, or from any unqualified gift made to it; as a purchase of bank stock, or of a library of books, or of land, or anything else, which it may purchase, or receive by donation. We discover in Mrs. Burnham’s deed nothing but an unqualified transfer of property, which may be used, at the pleasure of the grantees; no restriction, no sequestration for any public object. The society may do with it as they please: they may sell it, or use it, or give it away, without being liable to any one.

But it is said, and with much emphasis, that the character of the grantees, they being a religious body, possessing only attributes to promote religious objects, impresses upon the property, of necessity, the character of a sequestration or perpetual gift for religious purposes, since this is the only use to which the society can, by possibility, appropriate it. Therefore they insist, this is according to the true intent and meaning of the grantor. But the defendants can certainly sell this property, if it is their wish, and can reinvest the proceeds, as often as they please, without any accountability whatever: the heirs of the testatrix cannot complain, and who then can? Besides, the statute requires that the grantor shall make the sequestration herself: she cannot leave it to the law to do it for her. So too, the present character of the grantees may hereafter, by the legislature, be essentially changed, by its conferring upon them new and enlarged attributes.

Since, then, there is, as we believe, a manifest difference between the present case and those referred to; and as we are unwilling to extend the principle there decided, we hold the property in question is liable to be taxed; and therefore, that the plaintiff cannot recover.

Waite and Hinman, Js., were of the same opinion.

Church, Ch. J. and Storrs, J. dissented, on the ground that this case was not distinguishable in principle from that of Landon v. Litchfield, 11 Conn. R. 251.

Judgment for defendants.


text:
    The City of Hartford against Chipman and others:
    IN ERROR.
    It is an established principle of equity, that where an instrument is outstanding against a party, which is void, or an unfounded claim is set up, which, he has reason to fear, may, at some time, be used injuriously to his rights, thereby throwing a cloud over his title, equity will interfere and grant the appropriate relief.
    Therefore, where the defendants claimed an unfounded lien on certain real estate of the plaintiff, and it appeared, that such claim prevented purchasers of the estate from making payment of the stipulated price; on a bill in chancery, asking for a discovery, and that the cloud upon the plaintiff’s title, be cleared away; it was held, that the plaintiff was entitled to the relief sought.
    Hartford,
    June, 1852.
    The cases in which the court has refused its interference to remove the cloud, are where such interference was unnecessary, vexatious and expensive, because the instrument or other proceeding in question, was void on its face, or had already been adjudged void.
    To oust a court of equity of its jurisdiction, on the ground of remedy at law, that remedy must be obvious, adequate and complete.
    And this being a question of jurisdiction, it is to be considered as a preliminary one, and should be taken by demurrer to the bill, or in the answer.
    Where one of the defendants had sold the land in controversy, and conveyed it, with covenants of seisin and warranty; it was held, that he still had such an interest in the question of title, by reason of his covenants, as to make it proper that he should be joined in the suit.
    After the appointment of a committee in chancery, and a full investigation of the merits of the bill, the objection of the want of proper parties, or of mis-joinder of parties, comes too late.
    This was a bill in chancery, brought originally to the county court, against the city of Hartford, praying for a discovery and other relief.
    The material facts in the case appear in the report of the committee, to whom the matter in dispute was referred.
    The premises described in the bill belonged originally to Capt. Samuel Marsh, who died in the year 1803, and devised the same to William H. Marsh, Charles Marsh, Samuel J. Marsh and Edward Marsh, his grand-sons, and sons of his son Samuel Marsh, jun.

      Charles and Samuel J. died after the testator, in the years 1803 and 1804, intestate and without issue; and all their interest in the premises became vested equally in their surviving brothers, William H. and Edward, and their sister Catherine Marsh.

    In the year 1818, by a legal partition of the premises, by decree of the county court of Hartford county, the Northern section thereof, being 105 feet in front, was set to Edward; the middle section, being 100 feet in front, to Catherine; and the Southern section, being 160 feet in front, to William H.

      Edward died in the year 1828, and his section, by purr chase from his administrator, the same being sold by order of court, became legally vested in William H.

      William H. died in the year 1832, seised of both sections; and by will, he devised all his interest in the premises, in equal undivided shares, to Catherine Smith, Anna Smith and Sarah DeForest Smith, daughters of the above named Catherine Marsh.

      Catherine Marsh had, some time before, been married to George Smith, who died about the year 1830. And she remained sole from that time till her death, which occurred in the month of August, 1850.
    There was no other change of the title until after the year 1845, and after all the proceedings of the common council set forth below.
    Thus, in the year 1845, and during all the time covered by the proceedings of the common council, the premises were owned as follows, viz. the Northern and Southern sections, in equal and undivided shares, by Catherine, jun., Anna and Sarah. The middle section was held in severalty, by Catherine, sen.
    During all the year 1845, and the time above referred to, the dwelling-house, which stood upon the Southern section, was occupied, with the garden adjoining, by Tudor Adams; and the rest of the premises, as a grass lot, by Joseph Sheldon, who occupied as the tenant of Catherine, sen., and her daughters, and Adams, as the tenant of the daughters. There was no other tenement, except the dwelling-house, on the premises. Anna and Sarah, during this time, lived upon the premises, as boarders in the family of Tudor Adams. Catherine, jun., resided in Cuba, in the West Indies. Catherine, sen., was insane, and an inmate of the Retreat for the Insane, at Hartford. Catherine, jun., Anna and Sarah, were then all unmarried.
    The common council of the city of Hartford, in the year 1845, established a new grade of side-walk in front of the premises. All the particulars of the action of the common council in connection therewith, are found in the records of said council; and a copy of all of said records pertaining to such matter, is hereto subjoined.
    The committee found all the facts which those records legally prove; and that, under the direction of the vote passed by said council, on the 26th day of May, 1845, Henry Francis, Esq., clerk of said, council, left a certified copy of said vote at the house upon the premises, within the time required by law, with said Anna Smith; and that no other notice of said order was given to any of the parties interested.
    The committee further found, that, during all the time covered by the proceedings of the common council, Cornelius Burt held the office of street commissioner of the city of Hartford, and that, as such commissioner, he made said walk by order of said council; that his bill for making the same was 200 dollars, 77 cents; which bill was presented to and approved by said council, and was ordered, by said council, to be paid out of the treasury of said city, and was referred by said council to the city attorney for collection against the heirs of Samuel Marsh. This bill has never yet been paid to said city, nor any part of the same; and said city claims a lien on the premises therefor, under the statute providing for such case.
    Since the year 1845, Catherine, jun., has been married to Wells J. Babcock, of the city and state of New-York, and Anna, to George C. Chipman, of the town of Waddington, in the state of New-York.

    Upon the death of Catherine, sen., in August, 1850, all her interest in the premises became vested in Catherine, jun., Anna and Sarah. Soon after, and before the bringing of the bill in the present case, Wells S. Babcock and his wife, Catherine, George C. Chipman and his wife, Anna, and said Sarah De Forest Smith, conveyed all of the premises, except about eighty feet front at the North end, by warranty deed, with the usual covenants against incumbrances, to Alfred Smith, Charles Brainard, and Charles H. Brainard; and about the same time, said George, Anna and Sarah, by a quit-claim deed, released to Wells J. Babcock and Catherine, his wife, all their interest in said eighty feet front, remaining after the conveyance above-mentioned.
    It was also proved, (subject to an objection by the defendants, to the evidence,) that said Smith and Brainards, in consequence of the lien claimed by the city of Hartford, on the premises, withheld a part of the consideration of said conveyances, and refused to pay the same to the plaintiffs, until they should give them security to save them harmless from said lien; which security said Wells, George and Sarah thereupon gave; and which security is now held, by said Alfred Smith, and by said Charles H. Brainard, as survivor and executor of said Charles Brainard.

    Extracts from the records of the court of common council of the city of Hartford, above referred to.

      May 12, 1845.
    “Voted that the highway committee be directed to lay out a side-walk (if in their opinion it be necessary,) on the West side of Main street from Albany street North to the city line, and report the same to this court.”

      May 26th, 1845.
    “Report of the highway committee to whom was referred a resolution respecting a new grade of side-walk on the West side of Main street, between Albany street and city line, accepted, and the following resolution was passed, viz:

    “Voted, that a new grade of side-walk be laid out on the West side of North Main street, between Albany street and the city line, to commence at the city line, on the North, and extend, on a true descending grade, to the North side of Albany street; the altitude at the North end to be the surface of the ground at the city line; the altitude at the South end to correspond with the walk on the South side of Albany street. The outer line to be a straight line, parallel to and ten feet from the street line; and that the city clerk be ordered to notify the adjoining proprietors to flag four feet of the outer side of said grade with Bolton stone, on or before the first day of July, 1845.”

      June 23rd, 1845.
    “Remonstrance of D. S. Brooks and others against carrying into effect a recent order of the court for new grading and flagging a side-walk on the West side of North Main street, fronting the property owned by the heirs of Samuel Marsh, deceased, read, and after debate thereon, it was ordered to be lodged on file.”

      July 14th, 1845.
    “Whereas the court of common council find, that an order for laying out and constructing a side-walk, and establishing a new line and grade, and flagging the same with Bolton stone, on the West side of North Main street, between Albany street and the city line in said city, was passed by them, on the 26th day of May, 1845; and whereas said court find, that a part or all the proprietors required to construct, grade and flag said walk, have neglected to execute the same, within the time limited: Therefore, voted, that the street commissioner be, and he is hereby, appointed to carry into effect the aforesaid order in front of each of the proprietors of the lands and buildings fronting said side-walk, who have neglected to execute the same.”

      Sept. 8th, 1845.
    “Heirs of Samuel Marsh to the city of Hartford—bill of 200 dollars, 77 cents, referred to the city attorney for collection.”
    From the facts so found by the committee, the court adjudged, that the city of Hartford had no claim to or lien on the premises, or any part thereof, for the expenses of making the side-walk referred to in the bill. The court therefore decreed, that the premises, and every part thereof, be, and were declared to be, released and discharged from the lien claimed by the city of Hartford. Consequently, the bill was dismissed, with costs. The defendants thereupon filed their motion in error, bringing the record before the superior court for revision, in which it was continued for the advice of this court.

      L. F. Robinson, for the plaintiffs in error,
    contended, 1. That the case presents no such state of facts as will warrant the interposition of a court of chancery. The decree finds, that there is no lien or incumbrance upon the land in question, on account of the invalidity of the proceedings upon which the claim of lien was founded. Although void contracts and void proceedings may create an apparent cloud on the title, yet inasmuch as the remedy against them, when void on their face, is perfect at law, chancery cannot interfere to set them aside. Such is the well established law with respect to void contracts, deeds, annuities, &c. Gray v. Mathias, 5 Ves. 286. Simpson v. Lord Howdon, 3 Mylne & Craig, 97. Duke of Bolton v. Williams, 2 Ves. jun. 154. Smyth v. Griffin, 3 Simon, 245. S. C. 14 Law Journ. 28. Bromley v. Holland, 7 Ves. 21. 24. Piersol v. Elliot, 6 Pet. 95. Franco v. Bolton, 3 Ves. 368. 371. Ryan v. Mackmath, 3 Bro. Ch. Ca. 15. The same rule is applicable to invalid proceedings under statutes or charters. If a cloud on the title is the effect of a void city assessment, a court of chancery will neither interfere to set it aside, nor enjoin an attempt to enforce it. Van Doren & al. v. Mayor, &c. of New-York, 9 Paige, 388.
    2. That the bill is so defective, through the joinder of improper parties, and the omission of proper parties, as to make it impracticable for the court to found a just and effectual decree upon it. Gaston v. Plum, 14 Conn. R. 344. Mechanics' Bank v. Seaton, 1 Pet. 305. Coop. Eq. Pl. 33. 185. Sto. Eq. Pl. § 73.

      Goodman, contra,
    insisted, 1. That the facts of the case, as stated and found, entitled the plaintiffs to relief: they had no other remedy. The defendants could not bring a suit at law against the plaintiffs, or compel the plaintiffs to bring one against them. The city of Hartford claimed, that they had proceeded legally. Their proceedings were not void on their face. It was only by examining into extrinsic matters, that their invalidity could be made out. To defeat a bill in chancery, on the ground that there is adequate remedy at law, the remedy must be full, clear and complete: if difficult or doubtful, a court of chancery will entertain jurisdiction. New-London Bank v. Lee, 11 Conn. R. 112. Wheeler v. Clinton Canal Bank, Harring. Ch. 449. Johnson v. Hyatt, 3 Barb. 275. Lane, exr. v. Morrel & al. 3 Edw. Ch. R. 185.
    2. That the objection to the parties, comes too late. It can only be made on demurrer to the bill, or in the answer. Le Roy v. Platt & al. 4 Paige, 77. Fulton Bank v. New York & Sharon Canal Co. Id. 131. Grandin & al. v. Le Roy & al. 2 Paige, 509. 2 U. S. Eq. Dig. 147. and cases cited ib.

   Church, Ch. J.

The plaintiffs allege, that they were owners of certain premises in the city of Hartford, as the devisees and heirs at law of William H. Marsh, deceased. That the authorities of said city, as long ago as 1845, caused a side-walk to be laid out and constructed in front thereof, and assessed upon the heirs of said Marsh, for the expenses of the same, a large sum of money, for which the city has claimed, and still claims, a lien upon said premises, by virtue of the provisions of the statute laws relating to the city of Hartford : that the plaintiffs, not knowing nor believing, that any such lien or incumbrance upon said property existed, or could be legally claimed, on the 10th day of September, 1850, sold and conveyed the same, by deeds of warranty, with the usual covenants of seisin and warranty, and that the same were free from incumbrance, to Alfred Smith and Charles Brainard, of said Hartford: that said Smith and Brainard decline and refuse to pay to the plaintiffs the full amount of the purchase money, for which said premises were sold, but withhold the same, by reason of the aforesaid pretended lien of the city of Hartford.

The plaintiffs do not admit the existence of any such lien, and pray, that the city disclose the grounds of their claim and the amount of their lien, if they have one, and that the premises be discharged from any such lien or incumbrance; and that said city be enjoined against prosecuting the same, if none is found to exist; or if otherwise, that, upon being paid by the plaintiffs the amount of the same, the city be ordered to release to them all rights and claims to said premises.

The county court to which the bill was preferred, found, that the city of Hartford had no such lien as was claimed, and made its decree accordingly, upon the coming in of the report of the committee, to whom the matter had been referred. Whereupon this motion in error was filed and allowed.

The principle upon which this application is made, is one well recognized by courts of equity; the fear that the claim set up by the defendants, may, at some time, be used injuriously to the plaintiffs’ rights, and that it throws a cloud or doubt over a title in which they are interested. 2 Sto. Eq. p. 5, 6. § 694. 705.

But to the application of this principle to the present case, the defendants, for various reasons, object.

1. That, if there is no lien upon the premises, as the plaintiffs insist, this is apparent upon the face of the proceedings of the common council of the city of Hartford, as they are set forth upon the record, and as claimed by the plaintiffs in their bill. The defendants insist, that this case is assimilated to those in which applications have been made for the delivery up or cancelling of bonds, deeds and other instruments, not voidable merely, but void, for causes apparent on the face of them. And it is true, that in some such cases, courts of have refused to interfere; but this, we believe, has been where interference has been seen to be entirely unnecessary and the application, in its tendency or purpose, vexatious and expensive, as where the instrument sought to be delivered up and cancelled, was connected with nothing else, and affected nothing else; as a note or bond without a stamp, or illegal on its face, and thus harmless, in whatever place it might be.

There is a want of harmony in the decisions on this subject. We will refer to a few leading ones, relied upon by the defendants, the better to show the real principle of equity, and the distinction between those cases and the present.

The case of Simpson v. Lord Howden, 3 Mylne & Craig, 99. was an application to cancel an agreement, which the applicant claimed was void on its face, as against public policy, and on which an action at law was then pending. The objection was, that, in such case, a court of equity had no jurisdiction, and the bill was dismissed. The Lord Chancellor said, that he knew of no case going such a length—that there was no precedent for it—that in the case before him, he could do nothing, but merely order the agreement to be delivered up. No consequential relief was sought, no account to be taken, &c. Whether the defendant proceed in the action he has brought, or bring another action, the same questions must be raised and decided, as are raised in the bill. But by permitting the action to proceed, it will afford to the parties the most speedy, cheap and satisfactory means of deciding the question between them. It is very certain, that no necessity existed for the application in this case; and that, in its nature, it was vexatious.

In the case of Pearsol v. Elliott, 6 Peters, 95. the supreme court of the United States refused to order a deed of conveyance of land to be given up, which, it appeared, had not been duly acknowledged, by one of the grantors, who was a feme covert. But it appeared, in that case, that, before the bill was instituted, the deed had been adjudged void, in an action at law between the same parties. The ground assumed by the court, was, that the paper was unimportant, and could not avail its possessor, because it had been declared void by judgment of court, and therefore, the bill was unnecessary and expensive; and no other ground of equitable interference was pretended.

The case of Van Duren v. The Mayor, &c. of New-York, simply recognizes the abstract doctrine of the case of Simpson v. Lord Howdon, in 3 Mylne & Craig, without referring to any other case or principle, not even to the able opinion of Chancellor Kent, in Hamilton v. Cummings, 1 Johns. Ch. R. 517.

While we acknowledge the propriety and reasonableness of the decisions referred to, we see other facts and peculiarities in this case, clearly distinguishing it from them.

This bill does not ask for the bare cancellation of a deed. The city of Hartford had instituted certain proceedings, which, they claimed, had resulted in fixing a lien upon the property of the plaintiffs-it insisted upon the lien, and the plaintiffs had right to suppose, from some other cause or reason, than the records here produced, disclosed. This claim, whether legally existing or not, worked an injury to the plaintiffs, by creating such a doubt as, in fact, to cause purchasers under them to withhold payment. In this state of things, the plaintiffs could indeed have sued Smith and Brainard, and have been met with some defence, or by an application for an injunction against their further proceedings, and thus become involved in an expensive litigation in the dark; or they could ask, as they have done, to have this cloud cleared away.

This bill asks for a discovery, not frivolously, but for the purpose of information, of the grounds of the continued claim of the defendants, and to compel them to relinquish it, if no lien existed, and to enable the plaintiffs to redeem, if it did. In reference to such a case, Judge Story says: “Where the party is seeking a discovery, as the means of arriving at relief, by the delivery up or cancellation of a void instrument, it seems difficult to understand why a court of equity, having acquired a full jurisdiction in the case for discovery, should not, when that is obtained, proceed, for the purpose of preventing multiplicity of suits, to make a decree for the relief sought. But where no discovery is sought, and the naked case made by the bill, is for a mere delivery up or cancellation of the instrument, not averring any defect of proof, but simply stating, that the instrument is void, there might be more colour for some scruple in entertaining the bill.” 2 Sto. Eq. 9. 11. § 699.

Aside from any discovery sought, this bill is not merely quia timet, but the claim of the defendants is working a present injury, by actually preventing purchasers from making payment of the stipulated price to the plaintiffs, by reason of the cloud upon their title. 2 Sto. Eq. 11. § 700. In the case of Simpson v. Lord Howdon, an action at law was pending, to try the same question; and in the case of Pearsoll v. Elliott, the same question had been already determined; but here the plaintiffs were left in the dark and in doubt, because the defendants still insisted upon their lien, and yet instituted no means to enforce it. They have left the plaintiffs to the expence of determining their rights, only in this way, and by this bill; and now, not until after the county court, upon this hearing, has decided, that no such incumbrance exists, the defendants very ungraciously say, yes, this is true, and so obviously true, that the plaintiffs have never been in danger, and have had no just occasion to bring us into a court of equity. Indeed, the defence is, that as, after an expensive and long defended application in equity, the plaintiffs have succeeded in establishing their claim, this is the very reason why they are not entitled to relief. If the defendants had demurred to the bill at first, acknowledging their want of a lien, their defence would have appeared better. We are impressed with the good sense of the remarks of Chancellor Kent, on this subject, in Hamilton v. Cummings, 1 Johns. Ch. R. 517. in which case all the cases are reviewed. He says, “Perhaps the cases may all be reconciled, on the general principle, that the exercise of this power is to be regulated by sound discretion, as the circumstances of individual cases may dictate,” &c.

2. Another suggestion of the defendants is, that these plaintiffs have adequate remedy at law, by action for the stipulated price of the land sold to them, and there being no incumbrance, there can be no defence. To oust a court of equity, for this reason, of its jurisdiction, the remedy at law must be obvious, adequate and complete; and, as this objection raises a question of jurisdiction, it should be considered as a preliminary one, and should have been taken by demurrer to the bill, or by the answer, unless the court, from defect of power, was incompetent to grant the relief prayed for. Here the objection is only suggested, after a full hearing by a committee, and for the first time, on this motion in error. The objection now comes too late. Grandin v. Le Roy, 2 Paige’s Ch. R. 509. Fulton Bank v. New-York & Sharon Canal Co., 4 Paige’s Ch. R. 131. Le Roy Pratt, Id. 77. Underhill v. Van Cortland, 2 Johns. Ch. R. 369. Mitford’s Pl. 27. note. Besides, the plaintiffs had no remedy at law against these defendants. We are not aware of any case which decides, that if a plaintiff has an equity against the defendant, a court of equity loses its jurisdiction, because there may be a remedy at law, at the election of the party, against a stranger, or some other person.

3. Objection is further made, that the plaintiffs, or some of them, have sold and conveyed the lands, and have now no interest in them, which a court of equity can protect. It is true, they do not own the land itself, but they have an essential interest in the question of title, by which the purchasers under them hold the land, by reason of the covenants for title in their deeds. It is obvious, that their interest is as direct as if they now held the land.

Lastly, the claim is made, that here is a misjoinder of parties, and a want of parties. From the view we have taken of the interest of some of these plaintiffs, by reason of the covenants in their deeds, and the interest of others still in the lands themselves, we perceive no misjoinder; and if there had been, such misjoinder appearing on the bill itself, and not coming out merely at the hearing, we incline much to the salutary principle adopted by this court, as to the objection for want of parties, in the case of Lee v. New-London Bank, 11 Conn. R. 120. and other cases, as applicable here, and that this objection comes too late after the appointment of a committee, and a full investigation of the merits of the bill. In such cases, the defendants in equity ought to be considered as waiving these objections, and ought not to be permitted to take their chance against the plaintiffs on the merits, and then, if unsuccessful, to resort to such a defence.

We shall advise, that there is no error in the decree of the county court.

Waite, J., was of the same opinion.

Storrs, Hinman and Ellsworth, Js., being interested, did not sit in this case.

Judgment affirmed.


text:
    Van Brundt and others against The City of Hartford.
   This case was, in all essential particulars, and in its principles, like the foregoing case, and received the same decision.


author: Waite, J.

text:
    Lee and others against Stiles:
    IN ERROR.
    An averment of a fact need not be in direct and express terms; it being sufficient, that the fact appears by necessary implication from the words used.
    Therefore, where the complainant in forcible entry and detainer, averred, that the defendants entered upon the land belonging to the complainant, and him expelled therefrom, and put him out of possession thereof; it was held, that by this averment, it sufficiently appeared, that the complainant was in possession, at the time of the act complained of.
    To authorize the reversal of the judgment of an inferior court for illegal admission of evidence, the illegality must appear upon the face of the record.
    Therefore, where the alleged illegality consisted in the admission of a deposition, without the requisite notice of the taking; and this turned upon the question, whether a certain attorney to whom notice was given, was employed before or after the taking; the court, before which the trial was had, admitted the deposition; and no want of due notice appeared on the face of the record; it was held, that the judgment of such court ought not to be reversed on this ground.
    Litchfield,
    June, 1852.
    Where it further appeared, that due notice of the taking of such deposition was given to two, of the defendants in person, and the case was, in other respects, as above stated ; it was held to be incumbent on the others, who sought the exclusion of the deposition, to make their objection specifically, thus giving the adverse party an opportunity of making his election, either to meet the objection, or let the deposition be received as evidence only against those duly notified.
    Where a writ of restitution, unaccompanied by the judgment, and inter alios acta, was offered in evidence by the complainant, not to establish a title, but to shew what the property was, of which the complainant had become repossessed, and the extent of his occupancy; it was held, that such evidence was admissible.
    Where the defendants in forcible entry and detainer, to which the general issue was pleaded, offered evidence to shew, that during their own occupancy of the premises which they claimed, they had expended large sums of money in improvements upon the premises; it was held, that such evidence was inadmissible, as not within the issue.
    The original suit was a complaint for a forcible entry and detainer, made by Stiles against the plaintiffs in error.
    It was alleged in the complaint, that the defendants did, with force and arms, and with a strong hand, unlawfully and forcibly enter into and upon a certain tract of land, belonging to the plaintiff, (describing it,) and into and upon a certain tenement or dwelling-house, standing on said tract, and in certain mines then and there being; and did him, the complainant, with force and strong hand, expel and put out of the possession of said land, tenement, and mines; and him, the complainant, did unlawfully and unjustly, with force and arms, and with a strong hand, force and keep out of possession of the same; against the peace, &c.
    The cause was tried before a county commissioner, and a justice of the peace, upon the general issue; and a verdict was returned in favour of the complainant. The defendants filed a bill of exceptions. In that, it was stated, that on the trial, the complainant claimed, that he had holden and occupied the premises, by virtue of a deed from Asahel Bacon, for many years, with the exception of a short time, during which he had been ousted of the possession, by Benjamin Stiles and others; and that he had been restored to the possession, by virtue of a writ of restitution, issued by a judge of the county court and a justice of the peace, in the year 1838, upon a trial before them, on a complaint for a forcible and detainer. He offered the deed, in connexion with parol testimony, to shew, that he had occupied the land in conformity with the courses, distances, and description given in the deed. And to prove the execution of the deed, he offered in evidence the deposition of Dennis Kimberly. The defendants objected to its admission, upon the ground that due notice had not been given them, to be present at the time of taking it. Notice was given to two of the defendants and to Frederick Chittenden, Esq. At the commencement of the trial, a motion was made for an adjournment, on account of the absence of said Chittenden, who, it was claimed by the defendants’ counsel, was necessarily absent, and was the only attorney, who thoroughly understood and was conversant with the subject matter in dispute; but it was denied, when the deposition was offered, that he was counsel for the defendants, when the notice was given. The court, however, admitted the deposition.
    The complainant further offered in evidence the writ of restitution, together with the testimony of the sheriff, with his return on the writ, shewing that he had put the complainant in possession of the premises. This was objected to, by the defendants, on the ground that none of the parties, in that case, were either parties or privies, in the one on trial. But the court admitted the writ, and the testimony of the sheriff, to shew what had been the nature of the complainant’s possession; but informed the jury, that a possession, at the time of the restitution, would be of no avail, unless the complainant had possession, at the time of the ouster complained of.
    It further appeared, that the complainant had, for many years, been in possession of the premises; that the defendants, in the spring of the year 1850, with a view of examining and experimenting upon the ores supposed to be upon the premises, entered into possession, with the consent of the complainant, cut trees, erected a building, and performed much labour there. The complainant, becoming dissatisfied with their doings, ordered them to quit possession, which they refused to do, until the autumn following, when they were sued by their creditors, their tools attached, and, as the complainant claimed, they left the premises; and he entered—and continued in possession until the month of December following, when the defendants returned and took forcible possession of the premises, for which the suit was brought.
    The defendants claimed, that they had continued in possession; and after much evidence had been adduced, shewing their occupancy, as they claimed, under a parol lease from the complainant, they offered evidence to prove, that they had expended large sums in improvements pursuant to the terms of the lease; but the evidence was rejected, by the court.
    The defendants brought their writ of error to the superior court, at the August term, 1851, assigning for errors the matters set forth in the bill of exceptions, and also, that the complaint was insufficient, for want of an averment that the complainant was in actual possession, at the time of the alleged forcible entry. The cause was thereupon reserved for the advice of this court.

      Seymour and Sanford, for the plaintiffs in error,
    contended, 1. That the complaint was insufficient, because it does not aver, that the complainant was in possession. Stat. 113. § 224. Phelps v. Baldwin, 17 Conn. R. 209. Possession is a traversable fact, and should have been averred. The verdict does not help the defect; as it will not be presumed, that more was proved than is stated. Spieres v. Parker, 1 Term R. 141.
    2. That Kimberly's deposition was inadmissible, for want of notice of the taking of it. It does not appear, that Chittenden, at the time the notice was served, was agent or attorney.
    3. That the writ of restitution, unaccompanied by the judgment, was inadmissible. First, because Stiles himself, who offered the evidence, was a party, and the principal, in that proceeding. Secondly, because it was res inter alios acta.

    4. That proof of the defendants’ expenditures should have been received, as conducing to prove, that they had not voluntarily abandoned the possession, when the complainant entered.

      Belden and Orton, for the defendant in error,
    contended, 1. That the complaint was sufficient. It alleges, that the defendants entered upon the land (the land in question,) belonging to the complainant, and did him unlawfully expel and put out of the possession of said land, and did him deforce and keep out of the possession of the same. Here the previous possession by the complainant, is averred, if not in express terms, certainly by necessary implication; which is sufficient. Plainfield v. Packer, 11 Conn. R. 577. 579. Phelps v. Baldwin, 17 Conn. R. 209.
    2. That the admission of Kimberly’s deposition was no ground of error. In the first place, Chittenden was in fact the attorney of the defendants; and this appears from the bill of exceptions. But secondly, it was of no consequence to prove the execution of the deed, for the purpose for which the evidence was offered.
    3. That proof of the fact of restitution was proper, whether the writ was between the same parties, or not.
    4. That as the rejection of the evidence to show the defendants’ expenditures upon the land, is not specially assigned for error, the court will not hear or consider it. Rules of Pract. c. 13. § 1. 18 Conn. R. 572. But aside from this decisive answer, the matter which the evidence was offered to prove, was not pertinent to the issue.
   Waite, J.

It is claimed, by the plaintiffs in error, that the original complaint against them, is insufficient, for want of an averment, that the complainant was in the actual possession of the premises, at the time of the alleged forcible entry.

It is true, there is no direct averment to that effect; but such possession must necessarily be implied from the other allegations in the complaint. Thus, it is averred, that the defendants entered upon the land, belonging to the complainant, and put him out of possession of the same. Now, if the defendants actually put the complainant out of the possession, it would seem to follow, as a necessary consequence, that he must have been in possession, when the act was done.

An averment of a fact need not be in express terms: it is sufficient, that it appear, by necessary implication from the words used. Com. Dig. tit. Pleader. C. 77. Co. Litt. 303. a.

“It is indisputably settled," says Judge Hosmer, “that that, which is apparent to the court, and appears from a necessary implication out of the record, is the same as if it were expressly averred.” State v. Nichols, 8 Conn. R. 499.

2. It is claimed, that the court erred in admitting the deposition of Kimberly. The objection seems to be founded upon the claim, that Chittenden, with whom notice was left, was not, at the time, the attorney of the defendants. Whether he was, or was not, was a question of fact, to be determined by the court, upon the evidence before them; and it does not appear from the imperfect statement in the bill of exceptions, that that was found either the one way or the other, unless it may be implied from the circumstance, that the deposition was admitted by the court.

Before we can advise the superior court to reverse the judgment of an inferior tribunal, for the illegal admission of evidence, that illegality must be made to appear upon the face of the record. In this case, it seems not to have been denied, by the defendants, that Chittenden was their attorney; and the only enquiry must have been, whether his employment was before or after the time, when he was notified.

Upon this subject, the record furnishes no evidence beyond the simple denial of the defendants. If the deposition contained the requisite certificate, that the attorney, in the case, was duly notified, it is difficult to see upon what evidence it could be rejected.

But for another reason, this claim of the plaintiffs in error, ought not to prevail. It appears, that in addition to notice given to the attorney, notice was given to two of the defendants in the case. As against them, the deposition was clearly admissible. But the objection was general, without any discrimination between those who had, and those who had not, personal notice.

Had the defendants wished the deposition excluded, as against those not thus notified, they should have made their objection accordingly. The plaintiff then would have had an opportunity of making his election, either to meet the objection, or let the deposition be received as evidence only against those duly notified.

3. It is further insisted, that the writ of restitution was inadmissible, because it was unaccompanied by the judgment, and because, it was issued in a case between other parties. Had the evidence been offered to establish a title by virtue of the judgment, the objection would have been well founded.

But that was not the object. The testimony of the officer was proper to shew that the complainant took possession of the property under and by virtue of the writ; and the writ, to shew what the property was, and the extent of the complainant’s occupancy.

Even an unacknowledged deed and the record of a judgment between other parties, accompanied with evidence that a party entered into possession under such deed and judgment, is admissible for the purpose of shewing the nature of the occupancy, and that it was adverse. Rogers v. Hillhouse, 3 Conn. R. 398.

It is finally said, that the evidence shewing the defendants’ expenditures upon the property, should have been received, as conducing to prove, that they had not voluntarily abandoned the possession, when the complainant entered.

The issue between the parties was, whether the defendants had made a forcible entry upon the premises, and unlawfully detained them, by means of which the complainant had been ejected, and held out of possession. The fact that they were previously in the lawful possession, and so continued down to the time of the alleged injury, was proper to be shewn, for the purpose of rebutting the claim that there had been an unlawful entry. But whether they had expended much or little upon the property, could have no material bearing upon that issue. It was too remote, and was properly rejected.

We are therefore of opinion, that there is no error shewn upon the record; and so we advise the superior court.

In this opinion the other judges concurred.

Judgment affirmed.