author: Sanford, J.

text:
    Gray and others vs. Finch.
    In a case of forcible entry and detainer against <3, F and N, the plaintiff claimed that he had been in possession of the premises in question, in his own right, for more than five years next before the alleged forcible entry, and on his cross-examination, testified, that when he was informed by F, that said F and G had previously driven his (the plaintiffs) cattle ofF from the land in controversy, he informed F that, if that was so, he would be sued. Held, that the plaintiff might be further enquired of, as to his knowledge that G had, before that time, levied an execution on said premises, as tending to show the plaintifPs knowledge of acts of the defendants, from which he would infer that the defendants had made an act of entry upon said premises, before said conversation,

      Where in such case, G offered, as evidence of her title to the premises in question, an execution in her favor against the complainant, with the officer’s return of a levy and record thereof, with other evidence of acts of possession under said execution; it was held, that the same was admissible.
    Where such forcible entry and detainer was alleged to have been committed on the 16th day of June, 1853, and-the complaint was commenced on the 15th day of December, 1853, and on the trial, the defendants offered in evidence the record of a judgment, recovered by G against the plaintiff, in an action of trespass, commenced on the 25th day of April, 1853, and tried on the 17th day of May, 1853, in which G claimed to have been in possession of the premises in question, from the 10th day of July, 1852, to the 23d of April, 1853 ; it was held, that the record of such judgment was admissible in evidence, as tending to prove that, at the time of the alleged forcible entry and detainer, G was in the possession of said premises.
    Where the court refused to charge the jury, at the request of the defendants, that if G, after the levy of her execution, peaceably entered into, and took possession of the land in question, having the title and the right of possession, the law vested the actual possession in her, of which she could not be devested by any subsequent entry of the plaintiff, because such subsequent entry would be a trespass; it was held, that such course was correct.
    The plaintiff, in such proceedings, demanded a verdict against all said defendants, claiming to have proved, that before the alleged forcible entry and detainer, they had entered into a combination, in pursuance of which, N, by threats and violence, presented him from retaking the possession; the defendants denied such combination, and claimed that said land had been previously conveyed to N by G, and at said time was held by N, in his own right. The defendants requested the court to instruct the jury, that if N did the acts complained of, after such conveyance to him, and while he held said property in his own right, said G and F were not guilty of forcible entry and detainer, on account of the acts of N; but the court refused to comply with such request. Held, that such course was correct.
    An entry into premises occupied by another, with no more force than such as the law will imply in trespass, is not a”forcible entry, within the meaning of the statute.
    This was a proceeding in forcible entry and detainer, before a county commissioner and a justice of the peace for the county of Fairfield, instituted by Curtis Finch against Elizabeth Gray, Harvey Fitch, and Sturges Northrup.
    The complaint contained three counts, which were substantially as follows, to wit: To-&c., comes-— and complains that-on the-day of-at -, with force and arms, and with a strong hand, did unlawfully and forcibly enter into, and upon, a certain tract of land, lying in said New Canaan, belonging to the complainant, containing in quantity--, bounded, and described as follows, —-: which before had been, and then was, in the actual possession of the complainant, and him, the complainant, with force and strong hand, as aforesaid, did expel and unlawfully put out of the possession of the same, and him, the complainant, does unlawfully and unjustly, and with strong hand, deforce and still keep out of possession of the same.
    And the complainant further complains and says, that the said-on the-of-at said-, forcibly, and without the consent of the complainant, did enter into and upon a certain other tract of land, lying and being in said-, belonging to the complainant, containing--, and bounded as follows,-: which before had been, and then was, in the actual possession of the complainant, and him, the complainant, with force and arms and with a strong hand, did deforce and still keep out of the possession of the same.
    And the complainant further complains and says, that on or about the-day of-at said-,-did peaceably and without the consent of the complainant, enter into and upon a certain other tract of land, situated and lying in said-and containing-acres, more or less; which before that time had been, and then was, in the actual possession of the complainant, and the complainant, with force and arms and with strong hand, does deforce and still keep the complainant out of the possession of the same. And your complainant prays that due process may be issued against the said-defendants, in manner and form prescribed by a certain statute of this state, entitled “ An Act for the Eegulation of Civil Actions.”
    The defendants pleaded severally, not guilty, with notice of special matter to be given in evidence, on which there was a trial before the court, and a jury summoned for the purpose. On the trial of the case to the jury, on the issue joined, the complainant and defendants, respectively, made the following claims.
    The complainant claimed to have been in the actual possession of the described premises on the day of said alleged forcible entry, and continuously, for and during more than five years prior thereto, and until said alleged forcible entry.
    The defendants claimed that the actual possession of said premises was, on said day, and for eight months prior thereto, continuously, had been, in Elizabeth Gray, one of the defendants, and the other defendants claimed that in all things affecting the actual possession of said premises, they acted with the knowledge and consent of said Elizabeth, and that, if she were in the actual possession, they had not violated the possession of the complainant.
    Said Elizabeth Gray claimed the actual possession of said premises to be in her, by reason of the levy of an execution thereon, on the 8th day of July, 1852, and a peaceable entry thereon, and taking of possession, in October, 1852, and continued acts of possession from that time until the alleged forcible entry, and the recovery of a judgment in trespass, against the complainant for trespassing upon said premises, after she had taken peaceable possession thereof, and before the date of said alleged forcible entry.
    The complainant denied that said Elizabeth had ever taken any possession whatever of said premises, and that, if she had ever attempted to make entry therein, it had been in his absence, and was no interruption whatever of his actual possession, which, he claimed to have proved, remained undisturbed up to the date of said alleged forcible entry.
    On the cross-examination, the complainant testified that he was informed in the fall of 1852, by Mr. Fitch, one of the defendants, that said Fitch and Mrs. Gray had previously, within a short time, driven the complainant’s cattle off said premises in the complainant’s absence, and that complainant then informed said Fitch, that if that were so, he, the said Fitch, would be sued. The defendants’ counsel then enquired, on further cross-examination of the complainant, whether he did not know at the time he was so informed by said Fitch, that Mrs. Gray had previously levied an execution on said premises? To this enquiry, the complainant’s counsel objected, as an attempt on the part of the defendants, to prove an execution title in said Mrs. Gray. The defendants claimed that said enquiry was within the latitude of cross-examination to which they were entitled, and to show that Mrs. Gray had made peaceable entry under a levy of an execution, and taken and acquired actual possession, and the nature and extent of her occupation. The court decided that the enquiry was inadmissible and improper, for the purpose of showing any title in said Elizabeth.
    During the trial, the defendants offered in evidence, without reading, but stating what the document was, and subject to exception on the argument, an execution in favor of said Elizabeth against the complainant, with the officer’s return of a levy and record, and return of the same upon the premises described in the complaint, for the purpose, as stated by the defendants, of showing, in connection with evidence, (which the defendants claimed they had offered, or would offer,) of a peaceable entry and a taking possession under the same, and of continued acts of possession thereafter up to the time of said alleged forcible entry, and also for the purpose of shewing, in such connection, that the actual possession Of said premises, at the time of said alleged forcible entry, was in said Elizabeth Gray, and also to show the nature and extent of her possession. The admission of said execution was objected to, on the argument by the counsel for the complainant, and claimed by the defendants. The court did not admit the same, nor did the same go to the jury. The defendants gave in evidence, without objection, the record of a judgment, recovered by said Elizabeth Gray against the complainant, in an action of trespass, as set forth in said record, and upon the argument of the cause, claimed that said record was conclusive evidence of the actual possession of the described premises, by the said Elizabeth, at the time of the alleged forcible entry. To the - admission of this record as such conclusive evidence, the complainant, in reply to the above claim of the defendants, objected. The court did not exclude the evidence, neither did the court express any opinion to the jury, as to the admissibility, or effect, of said record. Upon said trial, the defendants offered evidence to prove, and claimed to have proved, that said Elizabeth Gray levied said execution upon said premises in July, 1852; that she thereupon in October, 1852, under and pursuant to said levy, entered peaceably into said premises, removed the plaintiff’s cattle therefrom, took open and notorious possession of the same, informed the complainant thereof, and forbade his going any more upon the land. That in the spring following, she exercised acts of open and notorious and peaceable possession of the same, and put the same in the custody and care of Sturges Northrup, one of the defendants, who lived adjoining the land, as her agent, to keep possession thereof, who thereafter, and until the time when the alleged forcible entry was alleged to have been committed, occupied the land and retained possession for her, and that she brought suits of trespass against said Finch, as often as she heard that he went upon the land.
    The complainant denied all this, and claimed to have proved, that both before and after said levy, and continuously until the alleged forcible entry, he occupied, enjoyed, possessed and improved said premises, in gathering crops, plowing, manuring, planting, cultivating, pasturing, and in every way had kept and maintained during the whole period aforesaid, the absolute and uninterrupted possession of the premises in himself.
    The defendants, upon this point of possession, prayed the court to instruct the jury that, if they should find that Mrs. Gray levied her execution upon the land, entered and took peaceable possession thereof, and continued to exercise acts of possession as claimed, the actual possession thereof vested in her and continued in her, notwithstanding the complainant continued to go upon the land; for that, if she so entered peaceably and took possession, having title and the right of possession, the law vested the actual possession in her, and the complainant, in entering upon the premises thereafter, was a wrong doer and a trespasser, and did not thereby devest her of her actual possession, nor revest the same in himself. The defendants further claimed, and prayed the court to instruct the jury, that the recovery of a judgment by Mrs. Gray against the complainant, founded on an alleged trespass upon her possession to the premises in question, and giving her damages for such trespass after her peaceable entry therein, and before the commission of the alleged forcible entry and detainer, was evidence of an actual possession of said premises, and that the actual possession of the same was not, as claimed, in the complainant.
    The defendants offered evidence to prove, and claimed that they had proved, that the plaintiff had said, on sundry occasions, that he occupied the premises in question, as the agent of one Frederick Finch. This the complainant denied, and claimed to have proved his actual occupation, and possession of the premises in his own right, for more than five years, continuously next preceding the said alleged forcible entry. The defendants claimed, and requested the court to instruct the jury, that if they should find from the evidence, that the complainant held possession, if at all, only as the agent and servant of Frederick Finch, he had not such possession as would enable him to maintain this prosecution; that the same should have been brought in the name of Frederick Finch, the principal.
    The complainant offered evidence to prove, and claimed that he had proved, that previous to the alleged forcible entry, it was arranged between the defendants, that they should go to the premises in question on the day of the alleged forcible entry, and that said Fitch, who was a deputy of the sheriff of Fairfield county, under the fraudulent pretence of serving a writ of trespass in favor of said Mrs. Gray against the complainant, and some of his hired laborers, should seize the complainant, and remove him from the premises; that thereupon Mrs. Gray should enter thereon and exercise acts of ownership, by breaking up bushes, &c., and should put said Sturges Northrup in possession, and give him, at some future time, a pretended deed thereof; that pursuant to fuch arrangement, on the day of said alleged forcible entry, said Fitch and Gray went to the premises, where the plaintiff was then ploughing, and having corn by him thereon previously planted; and said Gray got said Northrup to come there also ; that pretending to act under and by authority of said writ, said Fitch and Northrup violently seized and dragged the complainant from the premises, and drove off his cattle, and took off his farming implements; that thereupon Mrs. Gray immediately entered on the premises and told said Northrup to hold the same for her, and said Fitch told the complainant that, if he attempted to re-enter on said premises, said Northrup would take care of him; that afterwards said Northrup publicly declared, that if the complainant attempted to enter on said premises again, he, the said Northrup, would give him a pounding; that the complainant afterwards tried to enter thereon, and was thrown off and stricken by said Northrup.
    The defendants denied these claims of the complainant, and offered evidence to show, and claimed to have shown, that the plaintiff was arrested when on the land, by virtue of a writ of trespass in a suit of said Elizabeth Gray against the complainant in good faith, and that said writ embraced other persons, and had been duly served upon them and returned to court, and the action was now pending; that no violence was used or threatened towards the plaintiff; that he went off the land in obedience to the writ and arrest, without violence or threat of violence; that no violence had been threatened or intended; that said property was removed from said land, in pursuance of an intention to do continued peaceable acts of possession, and that no circumstances or threats of violence or injury calculated to create terror or fear of personal injury, or to deter the complainant from keeping or regaining his possession of the premises, if he had any, existed or were shown in the case, and prayed the court to instruct the jury in relation to the construction of the statute, and the meaning of the terms, forcible entry and detainer, and strong hand, and that they imported something more than the mere force implied in any trespass; and further to instruct the jury that, to constitute forcible entry under the statute, there must be an entry with violence or menace, or such circumstances as indicated an intention of taking possession by force, and were calculated to terrify the complainant, and deter him from maintaining his possession, and that the same conduct or circumstances in retaining possession, was necessary to constitute a forcible detainer; and further to instruct them that, under the two first counts, the jury must find the conduct or circumstances, constituting both a forcible entry and a forcible detainer, to be proved, and unless they so found, the plaintiff could not recover on those counts. And further to instruct the jury that, under the last count, they must find such conduct or circumstances as show a forcible detainer to be proved, and that unless they should find them so proved, the complainant could not recover on that count.
    Upon the trial, the complainant offered evidence, among other things, and claimed to have proved, that after the alleged forcible entry, and in the month of July or August, he attempted to go upon the land, and was pushed off by said Sturges Northrup, threatened and stricken with a stake, in pursuance of the arrangement between the defendants, as aforesaid, and that this, among other facts, showed a forcible detainer of the premises, as alleged in the complaint.
    The defendants offered evidence to prove, and claimed to have proved, that this controversy and pushing, threatening and striking, if it happened at all, which was denied, had relation to the situation of the boundary line between said premises and other lands occupied by the complainant, and not to the possession of the tract described in the complaint; but if otherwise, that it took place after Mrs. Gray had given said Northrup a deed of the land, and had ceased to have anything whatever to do with it, or had any knowledge regarding, or interest in it, and that said Fitch had nothing whatever to do with the premises or the possession of them, and no knowledge in relation to them after the 16th day of June, 1853, when the alleged forcible entry took place, by the service of said writ by him, as an officer, as aforesaid. But no such deed or copy thereof was read or offered in evidence, or in any way produced on the trial, nor was there any proof of its loss or destruction.
    The defendants prayed the court to instruct the jury, that if they should find the acts complained of were done, after Mrs. Gray had given a deed to Northrup, and ceased to have anything to do with the land, and while Northrup was holding possession in his own right, and after Fitch had ceased to have anything to do with the land as claimed by them, they could not find Mrs. Gray, or Fitch, guilty of forcible detainer, by reason of such acts by the other defendant, Northrup.
    The court, upon the whole ease, did instruct the jury as follows: “Gentlemen of the jury: We have decided that you are men of more than ordinary intelligence. The only question for you to decide is, whether there has been a forcible entry and detainer, or a peaceable entry and detainer. The plaintiff sets forth in two counts: 1. A forcible entry and detainer; 2. A peaceable entry and detainer, with a strong hand. Now, as you have heard the evidence and the arguments, you are men of years and of experience, and for me to address your understandings at this late hour, the time spent would be lost entirely.
    “ The parties have requested me to instruct you on certain points of law. If you were young men, we should feel duty bound so to do. If, in your opinion, the plaintiff was in the actual and lawful possession, it will be your duty to bring in a verdict for the plaintiff. The defendants aver that the plaintiff was not in the actual and lawful possession. Now you have heard their evidence, and the remarks of their counsel, and as it regards the points of law claimed by the defendants, you are fully competent to decide more correctly than I am myself.
    “ If, in your opinion, the allegations of the plaintiff are not maintained, it will be your duty to render a verdict in favor of the defendants. With these remarks, we submit the case to your careful consideration.”
    The jury having returned a verdict in favor of the plaintiff, the defendants thereupon brought a writ of error in the superior court, which was reserved for the advice of this court,—assigning for error the following causes:
    1. That the judgment of the said court ought to have been in favor of the defendants, and against the complainant.
    2. That the court erred in refusing to allow the defendants to enquire of the complainant, on cross-examination, as to said execution, and his knowledge of it.
    3. In neglecting and refusing to admit such execution, for the purpose for which it was offered, and in neglecting and refusing to charge the jury, as requested, concerning it, and concerning the force and effect of it.
    4. In refusing and neglecting to charge as requested, by the defendants, concerning the judgment record offered by them in evidence, and as to its admissibility and its force and effect as claimed by them.
    5. In neglecting and refusing to charge that, if the complainant was only an agent and servant of Frederick Finch, the principal, as claimed by the defendants, the complainant could not recover. And in neglecting and refusing to charge the jury, as requested, in that behalf and upon that point, by the defendants.
    6. In neglecting and refusing to charge the jury as to the rights of the defendants,—and of said Elizabeth Gray, especially, as owner of said premises, and as one asserting a right, as owner, over the premises in controversy, and as having entered as such, or claiming to be such owner,—as requested by the defendants.
    7. In neglecting and refusing to charge, as claimed by the defendants, as to the effect of the entries claimed to have been made, and occupation had by said Elizabeth, and that a peaceable entry and taking possession, under her levy of execution and acquisition of title, vested the actual possession in her, and the complainant in entering thereafter, was a wrong doer, and had not such possession as would enable him to bring and maintain said complaint.
    8. In neglecting and refusing to charge the jury, in the manner claimed by the defendants, that the defendants, Gray and Fitch, respectively, were not, and could not be found guilty of forcible detainer, by reason of the acts of the defendant, Northrup, after the day of the alleged forcible entry, and after they had respectively ceased to have anything to do with the land described in the complaint, and after the same had been conveyed to said Northrup,—as claimed by the defendants, if the jury should so find.
    9. In neglecting and refusing to charge the jury, as to the law relating to forcible entry and detainer, and the meaning of the terms, and the construction to be given to the statute, as claimed by the defendants, and as the court was requested to do by the defendants, and in not instructing them that they must find a forcible entry and a forcible detainer proved, or the complainant could not recover on the first two counts, and a peaceable entry and forcible detainer, or he could not recover on the last count.
    10. In not charging the jury, that if they found a peaceable entry, they must find a forcible detainer, or the complainant could not recover on the last count, and in charging that the only question for them was, whether there had been a forcible entry and detainer, or a peaceable entry and detainer. And also in not instructing them that a forcible entry meant something more than the force implied in every trespass; that to constitute a forcible entry, there must be some circumstances calculated to excite terror, &c., as claimed by the defendants, and that the same circumstances were necessary to constitute forcible detainer.
    11. In instructing the jury that if they should find that the plaintiff was in the actual and lawful possession of the land, they should render a verdict for the plaintiff", and in not instructing them that they must also find that the complainant had been deprived of his possession by the defendants, or some of them, and by a forcible entry and forcible detainer of the same, or a peaceable entry and a forcible detainer of the same, and that unless they so found, they could not render a verdict for the complainant. ■
    12. In neglecting and refusing to charge upon any and all the legal questions arising in said case, and leaving each and all of them to the decision of the jury.

      Hawley, and Butler Carter, for the plaintiffs in error.
    1. It was competent for the defendants to shew an actual possession in Mrs. Gray, by shewing that she had the right of possession, and had exercised the right, by taking possession, and a knowledge of the facts by the complainant. To this end, both the enquiry of the complainant and the execution were admissible. 17 Pick., 263. Doe v. Hicks, 7 T. R., 431. Taylor v. Cole, 3 T. R., 292. Lee v. Stiles, 21 Conn. R., 500. Bradford v. Bradford, 5 Conn. R., 127.
    2. The record of a judgment recovered was conclusive in relation to the actual possession, and the court should so have informed the jury, or at least told them it was evidence to be weighed, by them, on the question of possession.
    3. The court should have instructed the jury, in conformity with the claim of the defendants, as to the effect of the levy and taking possession by Mrs. Gray. The levy gave her, by statute, the exclusive right of possession, and that right became actual by a peaceable, exclusive exercise of it.
    4. The court should have charged, as requested by the defendants, in relation to the character in which the complainant held possession. A mere agent can not bring forcible entry; he has not actual possession. Trespass could not be brought in his name.
    5. The court should have charged the jury, as claimed by the defendants, in relation to the force necessary to constitute a forcible entry. The distinction between trespass and forcible entry, in relation to the kind of force, is not found in the statute, but in the common law.
    tí. The court should have instructed the jury, that Mrs. Gray and Mr. Fitch were not responsible for the acts of Northrup, upon the facts claimed.
    7. The court erred, in leaving the questions of law to the jury. The statute (Rev. Stat., 86) makes it the special duty of the court to decide all questions of law, arising on the trial of a case.
    8. The court erred in charging the jury, that if they found the complainant in actual and lawful possession, they must find a verdict for the complainant. The import of the whole charge, (if charge it can be called,) was that the question of possession was the only important one, and determined the other questions in the case. No other enquiry was submitted to them.

      Dutton, and Belden, and Wilson, for the defendants in error.
    1. The enquiry to Finch, in his cross-examination, in relation to the execution levy, was denied on the ground that it was an attempt to prove title in Mrs. Gray, and on no other ground, and in this the court was right. The title was not in issue, and could not be. Nor was this the best evidence the nature of the case admitted of. 1 Sw. Dig., 770. 1 Sw. Dig., 168, 169. 8 Conn. R., 523.

      2. The execution of Mrs. Gray was admissible for no other purpose than to show the extent of her pretended possession, and no question on that point was raised on the trial. If, therefore, this execution did not go to the jury, and the court did not charge as to the force and effect of the same, as claimed by the defendants, still the defendants suffered no wrong.
    3. The record of the justice in trespass was not admissible for any purpose, much less as conclusive evidence of Mrs. Gray’s possession; and if the court had charged the jury on this point, they must have charged decidedly against the defendants. The precise point in issue here, and before the justice, was not the same. The possession was not in issue before the justice. Smith v. Sherwood, 4 Conn. R., 276. 8 Conn. R., 418. 14 Conn. R., 61. 18 Conn. R., 91.
    4. The omission to charge as to the complainant being agent of Frederick Finch, was proper, there being no evidence of any such agency as to the land in question.
    5. The defendants have no reason to complain of the omission of the court, specified in the sixth and seventh assignments of error, for the charge upon the points there specified must have been- against them, because possession was the gist of the question.
    6. The defendants have no right to complain of the omission of the court, specified in the eighth assignment of error, for no legal evidence was offered, of any conveyance from Mrs. Gray to Northrup, at any time, nor does it appear, that the relationship of the parties was changed, between the forcible entry and the time at which the suit was brought by the complainant.
    7. The claims of these defendants, in their last assignments, are substantially the same; as will be seen when the charge is fairly applied to them: the charge is as broad as the statute. Stat. 1849, 113, 114. The charge says, upon the whole case, “The only question for you to decide is, whether there has been a forcible entry and detainer, or a peaceable entry and detainer,” i. e., a forcible entry and forcible detainer, or a peaceable entry and forcible detainer: this is the plain, obvious meaning of this clause, and could not have been misunderstood by the jury. The adjective is understood and supplied before “detainer.” If not well expressed, the charge is substantially correct.
   Sanford, J.

This is a writ of error, brought by the defendants below, to obtain the reversal of a judgment, recovered against them, in a proceeding for a forcible entry and detainer.

The questions, arising on the trial of the cause, are presented by a bill of exceptions.

1. The parties were at issue upon the question of póssession; the defendants contending that Mrs. Gray was in possession, claiming title under the levy of an execution in her favor; the plaintiff claiming that Mrs. Gray had never entered at all, or, if she had, that it was in his absence, and was no interruption of his actual possession.

The plaintiff testified as a witness, and, on his cross-examination, said that, when informed by Fitch, one of the defendants, that said Fitch and Mrs. Gray had sometime before driven his cattle off from the land in controversy, in his absence, he informed said Fiteh that, if that was so, he, said Fitch, would be sued. The defendants then proposed to enquire of the plaintiff, whether he did not know, at the time he was so informed by said Fitch, that Mrs. Gray had previously levied an execution on said premises. That enquiry was objected to, and prohibited by the court.

Now, from the plaintiff’s testimony already given, in connection with his claim upon this point, the natural inference would be, that Mrs. Gray could not have openly made an entry, or taken and held the actual possession of the property, prior to the conversation with Fitch, because, if she had, the plaintiff must have known it, and his possession must have been interrupted* And, although an answer to the proposed enquiry might not have been of any great importance, yet, for the purpose of repelling such an inference, if for no other purpose, it was admissible. Besides, the enquiry was proposed in the course of a cross-examination, in which considerable latitude is allowable. The witness, also, was himself a party in the cause, and was not entitled to a very rigorous application of the rule of evidence in his favor. The court below seems to have supposed that the evidence was offered for the purpose of making out a title in Mrs. Gray, but the bill of exceptions shows that this was a misconception. We think the enquiry ought to have been permitted.

2. The execution, offered by the defendants, in connection with the evidence of Mrs. Gray’s entry, and acts of ownership, or possession under it, was admissible for the purpose for which it was offered.

The entry, or possession of one who has a colorable title to land, furnishes a presumption, that he entered, or holds, claiming under that title,—in his own right and not in the character of a trespasser.

To show the nature or character of the possession claimed by Mrs. Gray, therefore, it was proper to produce the evidence of the title under which she entered. An unacknowledged deed, and the record of a judgment in a suit between other parties, are admissible as part of the evidence, to evince the nature of a possession taken, pr held under such deed and judgment. Rogers v. Hillhouse, 3 Conn. R., 398. And in connection with proof of acts of possession, the execution was evidence, to show the extent of the possession claimed by Mrs. Gray, as it showed the extent of the title under which she claimed. Lee v. Stiles, 21 Conn. R., 500. We think, therefore, that the court below erred in excluding that execution.

3. The statute, (tit. Civil Actions, § 144,) provides, that it shall be the duty of the court to decide all questions of law, arising in the trial of a cause, and in committing a cause to the jury, to direct them to find accordingly. This is a wise and salutary provision, essential, under our forms of procedure, to the due administration of justice. And, although we are disposed to give to the language and determinations of the inferior tribunals the most favorable construction, yet as we have upon this record, the entire address of the court in committing this cause to the jury, we can not but see that this duty, enjoined by the statute, was entirely misapprehended or utterly disregarded.

The forcible entry is charged to have been committed on the 16th of June, 1853, and this proceeding was commenced on the 15th of December, 1853. On the trial, the defendants introduced the record of a judgment recovered by Mrs. Gray, in an action, in which she claimed to have been in possession of the land in question, from the 10th of July, 1852, to the 23d of April, 1853, and charged Finch with the commission of divers trespasses on said land, between those dates. That action was commenced on the 25th of April, and tried on the 17th of May, 1853. Finch pleaded that he was in possession, at the time the action was brought, and at the time of the trial. Mrs. Gray demurred, and judgment was rendered in her favor.

It is obvious that the defendant’s plea in that case, was no answer to the plaintiff’s action. The only fact averred in it, that the defendant was in possession at the commencement of the suit, and at the time of the trial, was immaterial, and irrelevant to the issue. And it is equally clear that Mrs. Gray can not be prejudiced in this case,.by her demurrer in that. A demurrer admits only facts well pleaded, and sufficient in substance, and merely for the purpose of presenting an issue in law to the pourt, that their legal sufficiency may be determined, and not to the intent of concluding the party demurring in any other suit. As a rule of evidence, it admits nothing. Gould Plead., 461, 462. Pease v. Phelps, 10 Conn. R., 68.

The material averments in the declaration were unanswered and virtually admitted. The record of that recovery, therefore, was, as between the parties to it, and their privies, conclusive evidence that Mrs. Gray was rightfully in, and Finch out of, possession of the premises, at the time of the commission of the trespasses, for which the recovery was had; and as the state of things once established by proof is presumed to continue until the contrary is shown, (1 Greenl. Ev., § 41,) that record was evidence conducing to prove, and from which the jury, in the absence of satisfactory proof to the contrary, would be authorized to presume and find, that, at the time of the alleged forcible entry, the possession of the property continued in Mrs. Gray, and was not in said Finch. And we think the court ought so to have charged the jury.

' 4. The omission of the court, complained of in the sixth and seventh assignments of error—to charge the jury that, if Mrs. Gray, after the levy of her execution, peaceably entered into and took possession of the land, having title and the right of possession, the law vested the actual possession in her, of which she could not be devested by any subsequent entry of Finch, because such subsequent entry would be a trespass and a wrong,—was no error.

The question whether Finch was in actual possession, at the time of the alleged forcible entry, or not, was a question of fact for the jury.

Actual possession has no necessary connection with legal title. Nor is it dependent upon the character of the entry, whether that were peaceable or otherwise. It is taken and held by the party, in fact. The law has nothing to do with vesting it.

If Mrs. Gray, after a valid levy of her execution on the land, made a peaceable entry, and peaceably took possession, Finch could maintain no action against her for such entry, because she had both the legal title, and the right of possession, while Finch had neither.

But if such entry, though peaceable, was without the consent’of Finch,—then in actual possession,—and if Mrs. Gray retained her possession against Finch, with force and strong hand, then sne was liable at his suit for a forcible detainer.

5. The plaintiff claimed that he had been in possession of the land, holding it in his own right, for more than five years next before the alleged forcible entry.

The defendants contended, and offered evidence to prove, that, if the plaintiff ever had possession of the property at all, it was only as the agent and servant of one Frederick Finch, and not in his own right; and they prayed the court to charge the jury, that, if they should find that the plaintiff held possession, if at all, only as the agent and servant of Frederick Finch, he could not maintain the prosecution, but that it should have been brought in the name of said Frederick.

The possession of an agent, or servant, is the possession of his principal.

• If, therefore, the plaintiff occupied, only as the agent or servant of Frederick Finch, then Frederick Finch, and not the plaintiff, had, in contemplation of law, the actual possession, and the plaintiff could not maintain the action, and so the jury should have been instructed.

6. The plaintiff below demanded a verdict against all of the defendants, for the forcible detainer charged in the third count, and he claimed to have proved that, before the alleged forcible entry, they had entered into a combination and an agreement, under'and in execution of which, they made the forcible entry, put him out of possession, and Mrs. Gray entered and put Northrup in, and in execution of which, Northrup afterwards, by threats and violence, prevented him from retaking the possession of the property.

The defendants denied the combination and agreement charged, and claimed that neither Mrs. Gray, nor Fitch, had any thing to do with, or any knowledge of, the alleged threats or violence of Northrup, or any possession of, or interest in, the land at that time. And that Mrs Gray had, before that time, given Northrup a deed of the land, and that he "as then holding possession of it, in his own right. And they prayed the court to charge the jury, that if Northrup did the acts complained of, after Mrs. Gray had conveyed the property to him, and while he held it in his own right, and after Mrs. Gray and Fitch had ceased to have any thing to do with the land, they ought not to find either Mrs. Gray or Fitch guilty of the forcible detainer, on account of the acts of Northrup. \

Now, if the acts of Northrop were, as the plaintiff claimed, done in pursuance and in execution of a prior agreement between all the defendants to that end, then the aets of Northrop were, in legal contemplation, the acts of all. But the charge prayed for would have left entirely out of consideration the effect of such agreement on the liability of Mrs. Gray and Fitch, for the acts of Northrup, and we think such charge ought not to have been given, and that in withholding it, the court below committed no error.

7. But we think that the remarks, actually made by the court, were calculated to mislead the jury.

The jury were told, that if, in their opinion, the plaintiff was in the actual and lawful possession, he was entitled to their verdict. Thus making the whole case to depend upon the question of possession, regardless of the equally important enquiry as to the manner and character of the defendants’ entry and detainer.

The jury should have been instructed, not only that the plaintiff must prove himself in possession of the premises at the time of the entry, but also prove an entry by the defendants with what is called strong hand,—as, with an unusual number of people, with weapons, with menaces,—or accompanied with some circumstances of actual violence, calculated to intimidate the plaintiff, and deter, him from asserting or maintaining his right. And that an entry, which has no other force than such as is implied by law in every trespass, is not a forcible entry within the meaning of the statute. And that, to make a detainer forcible, the same kind and degree of force, or indications of violent designs, must be exhibited. 1 Russ. on Crimes, 286, 288.

There is manifest error in the record of the judgment below, and that judgment must be reversed.

In this opinion the other judges concurred.

Judgment reversed.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    Sherwood and another vs. Smith and others.
    The right to charge, as an advancement, property conveyed by a father to his son, must exist at the time of the conveyance.
    Where a father.conveys and charges estate to his son, as an advancement, and afterward converts it into^ an absolute gift, it is not competent for the father again to convert the same into an advancement, without the knowledge, or consent, of his son.
    A father, by merely charging his son with a sum as an advancement, without the transfer of any property at the time, can not deprive the latter of a full distributive share of his estate, upon his dying intestate.
    An intestate made a conveyance of real estate to his son, and charged it to him as an advancement. He afterward conveyed property, as advancements, to his two daughters, (said son and daughters being his only children.) He subsequently converted the property, conveyed to his son, into an absolute gift, with the mutual understanding, that no charge for any advancement should be made against either of his children. Afterward, without the knowledge of either of his children, he made entries upon his book, charging as advancements the property so conveyed to them, but never intended that any of his children should be so charged, unless all were. On an. appeal by the children and heirs at law of the son, from an order of the probate court, finding the amounts specified in said entries to be advancements, to which appeal said daughters of the deceased were made appellees,—it was held, that such decree should be set aside, both as to the appellants and the appellees.
    The superior court, upon an appeal from a decree of a court of probate, may disaffirm such decree in part, with directions to said court of probate as to further proceedings.

      This was an appeal from a decree of the court of probate for the district of Fairfield, finding that certain advancements had been made to the children of Jeremiah Sherwood, deceased, and directing that distribution of his estate should be made accordingly.
    Upon the hearing of the case before the superior court for Fairfield county, at the February term, 1855, the following facts were found:
    In 1824, Jeremiah Sherwood conveyed to his son, Gershom W. Sherwood, certain real estate, of the value of $1,100, and charged the same to him, as so much advanced toward his portion. Afterward, the two daughters of Jeremiah married, and he advanced to each of them the sum of $323. In the year 1844, after these advancements had been made, the said Jeremiah, having no other children than the son and the two daughters, the son requested his father to erase the charge against him of $1,100, to which the father assented, and accordingly made the erasure, with the mutual understanding that the donation to the son should be converted into an absolute gift, and that no charge, for any advancement, should be made against either of the children.
    The son died about four years afterward, leaving the two appellants, his sons and heirs at law. The father died in 1854, leaving the appellants and his two daughters, his heirs at law.
    After the said Jeremiah had erased the charge against his son, but at what time, whether before, or after, his son’s death did not appear, he made the following entries upon his book:
    “ Gershom Sherwood, 1824. To eleven hundred dollars, toward your portion.
    “ Pamela Sherwood, 1825. To three hundred and twenty-three dollars, toward your portion.
    “ Delia Sherwood; 1830. To three hundred and twenty-three dollars, toward your portion.”
    The son, in his lifetime, had no knowledge of these entries, or of any change in the intention of his father, respecting the gifts made to his children; nor had the appellants any such knowledge, until after the death of their grandfather, nor did it appear that any charges had ever been made against the daughters, until these entries were made. The deceased, in making the entries, never intended that one of his children should be charged with an advancement, unless all were, in the manner therein stated.
    After the death of Jeremiah, the book containing these entries was exhibited to the court of probate, and that court made an order, that the heirs of the deceased should.be charged with advancements, as specified in these entries. From that decree, the grandsons of the deceased appealed, and the two daughters and their husbands were made defendants.
    Upon these facts, the superior court reserved for the advice of this court, the following questions, viz.:

      1. Could the said Jeremiah, after the erasure of the first charge upon his book, in the manner stated, without the knowledge or consent of his son, convert the donation from an absolute gift, into an advancement, so as to deprive the appellants, his heirs at law, of their full distributive shares ?

      2. If he could not, what decree ought to be made, that justice may be done to the parties 1

      Hawley and Siurges, for the appellants.
    1. The property conveyed from Jeremiah Sherwood to his son, having been made an absolute gift by an agreement between them, could not afterward be converted into an advancement, without the knowledge or consent of the son. An advancement is property given by anticipation, as a part of the estate of the ancestor. According to the civil law, it is a gift received, upon an engagement, by the donee, to bring it into the mass of the inheritance, to be distributed with it. 2 Dom. Civil L., § 2947. To make’ a donation an advanced portion, it must be delivered and received as such. This incident or quality must be impressed upon it at its origin, and continued until the death of the ancestor. It is in the power of the donor, having once parted with his property as an advanced portion, to continue the gift in that form until his death, just as he may make a disposition by will. And as he may revoke his will, so he can remove the quality impressed upon the gift delivered, and the condition upon which it' was received as a part of his estate, and convert it into an absolute gift. But when converted into an absolute gift, it is utterly beyond the donor’s control. He can not subject it, in the hands of the donee, to the condition of a divided portion, or any other condition whatever. By the custom of London, “If the father declares by his will, that the money -given to the daughter was not a full advancement, it is sufficient, though by a subsequent will he declares the contrary.” 4 Com. Dig., Guard. G. 2. 2 Ca. Ch., 117. The law of advancements is derived from the civil law, and by that law the intention of the donor governs. Things given to one child, as an advantage over other children, are not advancements. 2 Dom. Civil L., § 2964. Johnson v. Belden, 20 Conn. R., 322. Clark v. Warner, 6 Conn. R., 355, 360.
    2. The superior court can not review, or alter, those parts of the decree not appealed from. The issue does not embrace those parts of the decree, relating to the advancements to the appellees. The finding of the court, that it was never intended that one child should be charged with an advancement, unless all were, was not within the issue, and no decree could be passed upon it. Kelsey v. Western, 2 Comst., 500. 3 Bligh, 261. 8 Cow., 328.

      Butler Sf Carter, and Beardsley Sf Seeley, for the appellees.
    1. It was entirely competent for the intestate to revise his original intention, and charge the gift made to his son, as an advancement. This did not affect the title of the son to the gift, but only his interest in the estate left at the death of his father. If the erasure of the first charge would not restrain the father, from providing in his will that the son should receive proportionately less of his estate, in consequence of the gift, it can not operate to estop him from reviving the charge as an advancement, which was but a legal method of effecting his last intent as to the disposition of his estate.

      2. The assent of the donee to the charge of an advancement is never necessary to its validity. Nor is it ever necessary he should know it at all, nor that it should have been originally intended, when given, as an advancement. 1 Sw. Dig., 458.
    3. The agreement, that it should be considered an absolute right, was not a contract, but a mere consent to abandon his right to make such a disposition of his estate, as he might ultimately desire to do. This can not estop him.
    4. It is as much against the policy of the law to put restraints upon making a final disposition of property as a party may desire, either by gift, or advancement, as by will. 3 Conn. R., 31. 6 Conn. R., 356. 1 Sw. Dig., 458.
    5. The appellants stand in no better position, than Gershom Sherwood would, if living. They come for the portion of the estate, remaining undisposed of at the death of the intestate, by virtue of the statute of distribution, which he would be entitled to, if alive. It would be obviously unjust to hold the charges against the daughters as advancements, without holding the charges against Gershom -to be such. The court must hold the charges against the daughters as advancements, and can only do justice between the parties, by holding all so.
   Waite, C. J.

If Jeremiah Sherwood had conveyed the property to his son, as an absolute gift, he could not afterward, without the consent of his son, convert that gift into an advancement, although at the time of the transfer, it was competent for him to give it either character, as he pleased. The right to charge, as an advancement, must exist at the time, of the conveyance.

Nor could he deprive his son of a full distributive share of his estate, upon his dying intestate, by merely charging him with a sum, as an advancement, without the transfer of any property. For although it was competent for him to direct in what manner his property should be distributed, after his decease, yet he could do it only by will, executed in the manner required by law, and not by a simple entry on his book.

Children can only be charged with advancements, who, in the language of our statute, “have been advanced by settlement, or portion,” and in the absence of any special agreement, to the extent only of the value of the property given.

It has been holden that a father may convey property to a son, partly as a gift, and partly by way of advancement. Could he, after a conveyance so made, charge the whole as an advancement? Clearly not. Meeker v. Meeker, 16 Conn. R., 387.

A son might be willing to receive property as a gift, which he would prefer not to take, as a part of his portion in his father’s estate. He might be willing to receive a collegiate education, if the expenses were borne as a gift, when, if they were to be charged to him as an advancement, he might prefer having the amount in a different form.

Although the property, in the present case, was originally given and charged to the son as an advancement, yet, by their subsequent arrangement, that conveyance was converted into an absolute gift, and from' that time stands in the same situation, as if it had originally been so given. And in our opinion, it was no more in the power of the father, by his single act, to change the character of the conveyance, than to rescind it.

If the decree of the court of probate, for the reasons stated, is to be set aside, a further enquiry arises, attended with no little difficulty, and that is, to what extent is it to be vacated?

That court has found, not only that? -ellants are ehargeable with an advancement, but that the appellees are chargeable in like manner; and the superior court has further found, that it was not the intention of the deceased to make any of his children so chargeable, unless all were.

The appellants only have appealed, and if the decree is set aside, so far as it relates to them, and left in force as to the appellees, manifest injustice will be done. Hence the question arises, whether a decree can be set aside, in favor of a party that has taken no appeal. This we think could not be done, were the rights of the appellees affected by a decree, distinct and independent of the one of which the appellants complain. But in this case, all the doings of the court of probate, in relation to the advancements, are embraced in a single decree, in which there is error; and although it might be competent for the superior court to disaffirm it in part, with directions to the court of probate as to further proceedings, yet we are inclined to the opinion that the whole decree ought to be set aside, and we so advise the superior court.

In this opinion the other judges concurred.

Decree of probate to be reversed.


text:
    Swift and others vs. Barnum.
    The plaintiffs delivered a quantity of hat-bodies and fur to B, who was to furnish trimmings and make them into hats for ten dollars per dozen. When most of the hats were ready for delivery, they were taken by the defendant, as sheriff, upon a writ of attachment in a suit against B, and sold upon an execution afterward obtained in said suit. Before the sale on execution, the plaintiffs demanded the hats, and tendered to the defendant $— for the services and expenses of B, and his lien on that account. The defendant received said money, making no claim for a larger sum, but refused to deliver the hats. In an action of trover, the court instructed the jury, that if the plaintiffs merely delivered the hat-bodies and fur to B, to be manufactured into hats, and had never parted with their property, they were entitled to a verdict, and that the rule of damages would be, not the full value of the hats, but the value of the hat-bodies and fur, together with the sum of $— paid to the defendant, and the interest on both sums from the time of the demand, and that the defendant’s acceptance of said sum tendered, without objection as to the amount, should be considered as a waiver of all further claim on that account. Held, that the defendant was not entitled to the application of any more favorable rule of damages than that laid down by the court, and that the verdict ought not to be disturbed.
    This was an action of trover, tried before the jury at Fairfield, February terra, 1855. The defendant pleaded the general issue, with notice of special matter justifying the taking, to be given in evidence.
    Upon the trial, it was admitted that the defendant, as a deputy of the sheriff of the county of Fairfield, had attached the goods described in the plaintiffs’ declaration, as the property of Harvey Brisco, in the manner set forth in the notice, annexed to his plea.
    The plaintiffs, in support of their title to the goods, introduced evidence to prove, that among other kinds of business, they were engaged in employing hatters, residing in different parts of the country, to manufacture materials furnished by them into hats; that, some weeks prior to said attachment, they delivered to said Brisco a certain number of hat-bodies, and a quantity of fur, to be made into hats for them, and for making and trimming them,' he was to receive ten dollars per dozen, upon delivering them to the plaintiff’s, at their store in the city of New York, and that the goods, claimed in their suit, were hats made from the materials thus furnished to Brisco.
    The defendant denied that the hat-bodies and fur had been delivered to Brisco under any such agreement, but claimed that the property had been sold to him by the plaintiff’s.
    It appeared from the evidence, that the plaintiff’s, at the time they delivered the hat-bodies and fur to Brisco, sold him a quantity of materials for trimming hats, and charged the same to him on their account, but no charge was made of the hat-bodies and fur, other than an entry in a book kept for such purpose, of the quantity delivered and the time when delivered, and that, in settling the price which Brisco was to receive for making the hats, six dollars per dozen were allowed for the labor, and four dollars for the materials used in the trimming.
    The defendant testified, that, on the 20th of February, 1852, the plaintiffs’ attorney tendered to him the sum of seventy-six dollars, for the lien of said Brisco in making said hats, and demanded .of him the hats; that he received the money but refused to deliver up the hats, saying, however, that he would see the attaching creditor and take his direction upon the subject; that he afterward saw the creditor, and they concluded not to deliver up the property attached, but he never informed said attorney of that conclusion, and the attorney, after having waited some two or three days, commenced the suit. He further testified, that when said demand was made, he made no other or further claim for any other lien than the seventy-six dollars.
    The hats were attached at the shop of said Brisco in New-town, in this state, and the greater part of them were finished, and ready to be forwarded to the plaintiffs, in New York.
    It was also proved, that the value of the hats when attached, was from $24 to $25 per dozen, and the value of the hat-bodies and fur about $10 less per dozen.
    Upon this evidence the defendant claimed, and prayed the court to instruct the jury—1. That the property in said hat-bodies and fur, vested in said Brisco at the time the same were delivered to him, and that the hats, made therefrom, were liable to attachment as the property of Brisco. 2. That if the materials for trimming said hats had become so intermingled with the fur and hat-bodies that they could not be separated therefrom, no recovery could be had against the defendant for attaching them as the property of Brisco. 3. That the plaintiffs could recover no more damages than the value of said hats, after deducting therefrom the value of Brisco’s labor upon them at $6 per dozen, and the value of the trimmings at $4 per dozen, with interest upon the balance, from the time of the demand.
    The court did not instruct, the jury in accordance with the claims of the plaintiff; but instructed them that if the plaintiffs merely delivered the hat-bodies and fur to B, to be manufactured into hats, and had never parted with their property therein, they were entitled to a verdict, and that the rule of damages would be, not the full value of the hats, but the value of the hat-bodies and fur together, with the sum of seventy-six dollars paid to the defendant, and the interest on both sums from the time of the demand. And that the defendant’s acceptance of said sum tendered, without objection as to the amount, should be considered as a waiver of all claim for a greater sum.
    The jury returned a verdict for the plaintiffs; and the defendant moved for a new trial.

      Belden, and Beardsley & Seeley, in support of the motion,
    cited 1 Sw. Dig., 286. Moor v. Boswell, 5 Mass. R., 307.

      White, contra.
    1. The superior court, in the charge to the jury, very properly left it with them to find whether the plaintiffs had ever parted with their property in the goods, and their verdict is final and conclusive upon that point.
    2. Brisco was the mere bailee of the plaintiffs, and the intermingling of his property with theirs, if without fraud, could not in any manner affect the rights of the plaintiffs, and did not change the property in the goods as against them. The hats were their property in every stage of manufacture. Babcock v. Gill, 10 Johns., 287. Batchelder v. Warren, 19 Verm. R., 371. Eaton v. Lynde, 15 Mass. R., 242. Buckmaster v. Mower, 21 Verm. R., 204. Frost v. Willard, 9 Barb. Sup. Ct., 440.
    3. The tender to the defendant, and acceptance of the same, without denial of its sufficiency, was a full satisfaction of all Brisco’s claim upon the hats for labor and materials. And the defendant, by his silence, when the tender and demand were made, waived any further claims for the same. Thompson v. Rose, 16 Conn. R., 71.
    4. The charge to the jury, on the question of damages, was one, of which the defendant can not with propriety complain. It was simply an instruction to the jury, to give to the plaintiffs, in case of a verdict in their favor, the original value of said material, and annexing to that value as'damages, the money which the plaintiffs had paid to the defendant.
    5. The court will not grant a new trial, when justice has already been done between the parties.
   Sanford, J.

This is a motion for a new trial, complaining of the charge of the court to the jury.

The plaintiffs, residing in New York, delivered a number of hat-bodies and a quantity of fur to one Brisco, to be manufactured into’1 hats for the plaintiffs, (Brisco finding the trimmings,) for which manufacture and trimmings the plaintiffs agreed to pajr Brisco ten dollars per dozen, upon the delivery of the hats in New York,—the making being estimated at six dollars, and the trimmings at four dollars per dozen, and the value of the finished hats being twenty-four or twenty-five dollars per dozen.

Most of the hats were finished and ready to be forwarded to the plaintiffs, when they were taken at Brisco’s shop in Newtown, by the defendant, a deputy-sheriff, upon an attachment in favor of one Curtis against Brisco, as the property of Brisco, and were afterward sold upon the execution obtained by Curtis in that case.

No question was made, as to the regularity of the proceedings under that attachment or execution.

Before the sale of the hats, and before the commencement of this suit, the plaintiffs tendered to the defendant the sum of seventy-six dollars, for the services and expenses of Brisco in the manufacture of the hats, and for his lien on that account, and demanded the property of the defendant. The defendant received the money without objection, and made no claim for a larger sum, but refused to give up the hats, and this action of trover was brought to recover the value of them.

The defendant sought to justify the taking under his attachment, and claimed that if the plaintiffs were entitled to a verdict, the rule of damages should be the value of the hats, deducting ten dollars per dozen for Brisco’s labor and trimmings, with interest from the time of the demand.

The court instructed the jury, that if they should find that the plaintiffs merely delivered the hat-bodies and fur to Brisco, to be made into hats for them, and had never parted with their property in the same, they were entitled to a verdict, and that the rule of damages would be, not the full value of the hats, but the value of the hat-bodies and fur, together with the sum of seventy-six dollars paid to the defendant, and interest on both sums from the time of the demand. And that the defendant’s acceptance of seventy-six dollars for Brisco’s lien, making no claim for a larger sum, should be considered as a waiver of all further claim on that account.

The only error in the charge, which the counsel for the defendant insist upon in this court, relates to the rule of damages.

Under the charge, the jury must have found that the hats were the property of the plaintiffs, subject to Brisco’s lien, and that the full amount of that lien was tendered and paid by the plaintiffs, and received by the defendant,—so that the hats, discharged from the lien, (at any rate, so far as the defendant was concerned,) were, at the time of the demand, the absolute property of the plaintiffs, and they were entitled to the immediate possession of them. And it is fair to infer from the charge and the verdict, that “the full value of the hats” was something more than the value of the hat-bodies and furs, together with the money paid to the defendant on account of the lien. Whatever therefore might be said of the charge on this point, by the plaintiffs, the defendant has no cause of complaint.

The value of the property at the time of its conversion, is, ordinarily, the rule of damages. 2 Greenl. Ev., § 276. And we think the defendant has failed to show the existence of any fact, or circumstance, which entitles him to the application of any more favorable rule than that laid down in the charge, and that the verdict ought not to be disturbed. Johnson v. Blackman, 11 Conn. R., 342. Holly v. Brown, 14 Conn. R., 255. Kelsey v. Hanmer, 18 Conn. R., 311.

In this opinion the other judges concurred, except Waite, C. J., who was disqualified.

New trial not to be granted.


author: Hinman, J.

text:
    Knapp vs. White.
    A bill in equity, praying for relief against a mistake in a deed, in not excepting from the covenant against incumbrances, a right to dig, and maintain, a ditch for the conveyance of water through the premises, was referred to a commit-the, to whose report the defendants excepted, because, on the hearing, they received as evidence of the allegations contained in the bill, 1. Letters, written by the parties during the negotiation for the purchase of the premises, containing no allusion to the ditch. 2. Proof of the long existence and necessity, of the incumbrance in question, and the defendant’s knowledge thereof. 3. The fact, that certain other incumbrances, on the premises, were mentioned to the plaintiff, and excepted from said deed. Held, that such evidence was properly admitted.
    Where, on said hearing, such evidence was received, and it did not appear that other evidence was not offered by the plaintiff', and the committee found that it was the intention of the parties to except such ditch from the cove - nant against incumbrances, and that it was not excepted through the mistake of both parties; it was held, that such finding of the committee was conclusive, and could not be reviewed by the court.
    An omission of a committee in chancery, to find all the facts in issue between the parties, may be supplied by a finding of the court; but it is not competent for the court to pass upon evidence, which has once done its office, before a committee, in enabling them to find facts upon it.
    Courts of equity will often found their decrees upon evidence of the acts of the parties, when nothing was said by them, on the ground that men are presumed to intend the probable consequences of what they do.
    This was a bill in chancery, to correct a mistake in a deed of land, given by the plaintiff to the defendant. At the term of the superior court, holden in April, 1853, the cause was referred to a committee, whose report embraced substantially the following facts:
    On the second day of October, 1851, the plaintiff owned and possessed, in his own right, in fee, a certain tract of land, situated in the town of Danbury, containing about two and a half acres, with the buildings standing thereon, excepting a blacksmith’s shop and engine-house. There was, and ever since the year 1792 had been, a raceway, or ditch, running through said land, for the purpose of conveying the water from a mill situated a little westerly from said land, about one-half of which ditch, or raceway, was covered over, and concealed from view, and the remaining part was uncovered, and plainly visible. The right to keep, use, and maintain said ditch in said place, for said purpose, had been theretofore granted, and leased, by Benjamin Knapp, deceased, who was then the owner of said tract of land, to one Daniel Comstock, who then owned said mill, for the term of 999 years, from the 17th day of December, 1792; which said lease was dated on said 17th day of December, 1792, and contained divers covenants, stipulations and conditions. Said land from said 17th day of December, 1792, to said 2d day of October, 1851, yvas subject to the right of said Comstock, his heirs and assigns, to have, keep and maintain said ditch, over and through said tract of land, during the term aforesaid. On and before said 2d day of October, 1851, on the application, and at the instance, of the defendant, a negotiation had been commenced, and was pending, between the plaintiff and the defendant, for the purchase of said tract of land and the buildings thereon. On the 2d day of-October, 1851, and for nearly sixty years before that time, the existence of said ditch in said place, for the use and purpose aforesaid, was a fact of general and public notoriety in said Danbury, and during the greater part of said period, had been well known to the defendant. Said ditch, or raceway, was indispensable for the operating of said mill; was constructed in a durable and permanent manner, and, without the right in the owners of said mill, to have, keep, and maintain the same, over and through said land, the value of said mill, if not entirely destroyed, would be greatly diminished and impaired; all which was well known to both the plaintiff and defendant. In the negotiation between the plaintiff and the defendant, for the sale and purchase of said tract of land, no allusion whatever to said ditch was made by either of the parties; but the existence thereof, its long continuance, the durability of its structure, and its necessity in order to the operating of said mill, were well known to them both, and the right to have, keep np and maintain the same over and across the said tract of land, was, during said negotiations, and at the time of executing the deed by the plaintiff to the defendant, deemed and treated by said parties, as a permanent right in the owner, or owners, of said mill. During the time, when such negotiation was pending, and when said deed was executed, and delivered to the defendant, it was not the intention of the plaintiff to warrant, or guaranty, the defendant against the existence of said ditch, and the right to keep and continue the same, as aforesaid; nor was said ditch or said right considered by the defendant, before, or at the time of the execution of said deed, an incumbrance on said land, the existence of which should, or would, subject the plaintiff to any liability to the defendant, upon any covenant, or covenants, which might be inserted in the deed thereof, to be executed by the plaintiff to the defendant.
    On the 2d day of October, 1851, at said Danbury, as the result of said negotiations, the plaintiff sold, and by deed, duly executed and acknowledged, conveyed to the defendant, who then and there purchased, and took from the plaintiff, said land and buildings, so then belonging to the plaintiff in fee-simple, for the price of three thousand seven hundred dollars, a sum considerably exceeding the actual intrinsic value of said land and buildings, at the date of said deed, and it was then the intention of the defendant, to purchase and take, under and by virtue of said deed, and his understanding that he did take said land and buildings, subject to said ditch or raceway, and subject to the right to have, maintain, and continue the same over and through said land, in manner aforesaid. And it was the design and intention of the plaintiff’, by virtue of said sale and said deed, to transfer and convey to the defendant, said property, subject to said ditch, and to the right to have, keep, and maintain the same.
    In pursuance of, and in conformity with, the real design, intention, and understanding of the parties, during said negotiations for the purchase and sale of said property, and at the time of the execution and delivery of said deed, said ditch, and the right to keep up and continue the same, during the residue of said term of 999 years, ought to have been excepted from the covenant against incumbrances, contained in said deed; but through haste, and by reason of inadvertence, on the part as well of the defendant, as of the plaintiff, the existence of said ditch, and said right to keep and maintain the same, were not excepted therefrom. The defendant claimed that said ditch, and said right to keep up the same, at the time of executing said deed, were an incumbrance. on said land, and that the plaintiff was bound to pay him damages on account thereof, and threatened to prosecute the plaintiff to recover the same.
    Against the acceptance of this report, the defendant filed a remonstrance; alleging as grounds of remonstrance, that, on the hearing before said committee, the plaintiff to prove that he and the defendant, at the time of executing and delivering the deed aforesaid, deemed and treated the right to keep and maintain the ditch, and water-course, across said land, as a permanent right in the owners of said mill; and that, during the time when such negotiation was pending, and when said deed was executed and delivered to the defendant, it was not the intention of the plaintiff to warrant, or guaranty the defendant against the existence of said ditch, and the right to keep and maintain the same, over and across said land; and that said right was not deemed by the defendant, before or at the time of the execution of said deed, an incumbrance on said land, the existence of which should, or would, subject said plaintiff to any liability to the defendant, upon any covenant or covenants, which might be inserted in the deed thereof, to be executed by the plaintiff, offered in evidence certain letters written by said parties,—also, the facts regarding the existence, character, and necessity of said ditch, and the knowledge thereof by the defendants, stated in said report; also, the fact that certain incumbrances on said land were mentioned by the defendant, when said deed was given, and were excepted from said deed. No part of said evidence showed any knowledge in the defendant, of any lease, or the terms thereof. To this evidence the defendant objected, before the committee, as irrelevant, and not conducing to prove the averments contained in said bill, but the committee admitted the same.
    Upon the hearing of said remonstrance, the court found that the plaintiff, on the trial before the committee, offered to prove the truth of the facts alleged in the bill, by the evidence and testimony set forth in said remonstrance. And among other witnesses, the defendant testified to the notoriety, condition and structure of the raceway, or ditch, as claimed by the plaintiff, and that the same was not spoken of by the parties during the negotiations, but he supposed the owner of the land had control of the ditch, or raceway. ' To all which testimony and evidence, as to its relevancy and sufficiency, the defendant’s counsel objected; and in considering, and deciding, and,in making the report aforesaid, the committee entertained said evidence as proper and admissible, for the purpose for which it was offered, and was materially influenced and controlled by the same, in making his report. And the court found the facts alleged in said remonstrance proved, and thereupon rejected the report, and ordered the petition to be dismissed, and that the defendant recover of the plaintiff his costs.
    The plaintiff thereupon, by motion in error, brought the case before this court for revision.

      Hawley, and Butler Sf Garter, in support of the motion.
    1. It is clearly shown, by the report, that each party well knew the existence of the incumbrance of the ditch; that it was permanent; the intent of the grantor to convey it, and of the grantee to receive it, subject to that incumbrance. Neither party intended that it should be covenanted against, and it is explicitly found that the deed does not, in that respect, comport with the intent of the parties. It is no matter how the mistake occurred. The rule does not depend at all on the cause or manner of the mistake. 1 Sto. Eq. J., § 142, 152, 153, 155, 156, 159, 162. 2 Sw. Dig., 92, 95. Newland Con., 432. Coop. Eq., 140. Kirby, 400. Matson v. Parkhurst, 1 Root, 464. 10 Conn. R., 243.
    2. No sufficient ground for setting aside the report was shown by the remonstrance.
    It does not appear, nor is it true, that the testimony set forth was all that was offered and heard by the committee. That which was objected to, clearly tended to show the facts it was offered to prove, and would have tended to show them, had it been all the testimony. The well known rule, that an express warranty (in case of personalty) does not apply to visible defects, rests upon the evidence which the knowledge of such defects furnishes, that the parties did not intend that this warranty should apply to them. 2 Sw. Dig., 382. 15 Johns. R., 491. 20 E. C. L. R., 255. Even at law, the knowledge of the parties, of facts and circumstances is regarded as evidence of intent in construing contracts. Leland v. Stone, 10 Mass. R., 459. Fowle v. Bigelow, 10 Mass. R., 379.
    3. The averment of the remonstrance, that the testimony offered showed no knowledge of the lease, &c., is not the averment of a fact, but only of the inference of the pleader from the evidence. The testimony did in fact show, or at least tend to show, knowledge of the lease, even if that had been all the testimony offered.
    It showed, directly, everything which could put the party on enquiry, and lead to an examination of the lease; there was surely enough to amount to constructive notice.
    4. The testimony was not objected to, as not being proper to prove knowledge of the lease, but as being inadmissible to prove other facts. The remonstrance raises no question whether such knowledge was necessary to entitle the plaintiff to recover. A knowledge of the lease was not necessary; for the facts, found to have been within the knowledge of the parties, would of themselves show a right to the watercourse in fee; a greater right, a greater incumbrance than the lease created, which right would necessarily give to the proprietor a right to keep the ditch clear, and to do everything for that purpose, which the lease empowered him to do, while it would leave him exempt from some liabilities which the lease imposed on him. The incumbrance, therefore, was less than that which the facts, found to have been within the knowledge of the parties, would of themselves, without the lease, have established. But the report, by finding that the parties had full knowledge “of all the facts aforesaid,” finds that they had knowledge of the lease.
    5. The objections taken by the superior court, to the report, are rather by way of a mere review of the evidence, before the committee, than of a revision of any legal decision. The weighing of the evidence, and the finding of facts upon it, belonged exclusively to the committee.
    But the court, in arriving at its conclusion, took into consideration, and acted on testimony, not at all alluded to by the remonstrance; there was no complaint that it was excluded by the committee, and it belonged exclusively to the committee to determine its weight.
    If the report was rightfully rejected, the bill should not have been denied without a further hearing.

      White and Dutton, contra.
    I. The superior court should have rejected the report of the committee, and found the facts alleged in' the petition not true, because, 1. The whole of the testimony, offered by the plaintiff, of the notoriety of the ditch, or raceway, and the knowledge of the defendant of its existence, and upon which the report was mainly founded, was improper, and should not have been admitted by said committee. 2. Because the committee went beyond his powers in inferring facts to exist, from certain other facts proved, which inference was neither legal nor equitable, particularly the inference that it was the intention of the plaintiff to give, and the defendant to take, the deed in question, subject to said ditch, or raceway, and to the right to continue the same, over and through said land, in the manner mentioned in said report,—the evidence being, that during all the negotiations for the sale or purchase of said property, said ditch, or raceway, was never mentioned between the parties, or adverted to by them, and consequently the parties could not have intended to have excepted it, in the covenants of warranty.
    II. The finding by the superior court, of the facts contained therein, was legal and proper. Any facts were within the issue, which showed that the report ought not to be accepted. The court is not confined to the facts found by the committee, but may find new facts. Callender v. Colegrove, 17 Conn. R., 2.
    III. The judgment of the superior court should have been to dismiss the bill, it appearing from the facts admitted and properly proved, that a court of chancery can grant no relief. 1 Sto. Eq., ch. 5, § 151, 152. Hubbard v. Norton, 10 Conn. R., 422. 2 Sw. Dig., 38, 95. 1 Vesey, 317.
    IV. The remedy, if any, would be at law, by overruling the opinion of the court in Hubbard v. Norton, 10 Conn. R., 422.
   Hinman, J.

The superior court, at its October term, 1853, found certain facts, in respect to the admission of evidence before the committee, appointed to find the facts in this case; and that the committee was materially influenced, and controlled, by the same, in considering, deciding and making his report; and thereupon set aside, and rejected, the report: and, at a subsequent day, without taking any measures to find whether the facts stated in the bill were, or were not, true, dismissed the bill, and rendered judgment for costs, in favor of the defendant. The order of the court, dismissing the bill, was irregular, because the statute expressly requires that courts of equity shall cause the facts, on which they found their decrees, to appear on record. Stat. Ed., 1854, p. 471, § 7. But this irregularity has now been obviated by the agreement of the parties, sanctioned by the court, which has set aside the order rejecting the report and dismissing the bill. And the case now comes before us, upon the report of the committee appointed to find the facts, the remonstrance of the defendant against the acceptance of it, the finding of the superior court, at its October term, 1853, and the reservation of all questions, arising upon these documents, for the advice of this court, at the request of the parties pursuant to their said agreement. There are also appended to the record, the reasons of the judge of the superior court for dismissing the bill. But this, being no part of the record, must be entirely disregarded, so far as any facts are stated therein, which are at all at variance with the facts, found in the other documents, or are not properly in issue between the parties.

The object of the bill is to reform the plaintiff’s deed to the defendant, so as to except from the operation of the covenant against incumbrances, a grant of a right to dig, and maintain through the premises conveyed, a ditch, for the conveyance of water from a certain grist-mill to the river*, which was made in 1792, by the then owner of the premises, and was to continue for the term of nine hundred and ninety-nine years, the grantee thereof always to keep said ditch covered with stones and earth, and levelled so that grass may grow and form a sod upon it, for the use of the grantor, and the grantee to have the right of access to said land, to make all necessary repairs in the ditch, and the privilege of a free flow of water from the mouth of the ditch, with other provisions contained therein, which it is unnecessary to enumerate.

The report finds the material allegations in the bill, to be proved and true,—particularly that, up to the time of his deed to the defendant, the plaintiff owned the premises; that, ever since 1792, there has always been the raceway, or ditch, described in the bill, running through the same, and conveying the water from a mill, situated a little westerly from the land, one-half of the ditch being covered, and the remaining part uncovered and plainly visible; that the grant of the right to maintain the ditch, and its existence, and use, has been a fact of general notoriety for more than sixty years, in Dan-bury, and was well known to the defendant, being indispensable to the operating of the mill, which was also well known to the defendant, and to the plaintiff; that no mention or allusion was made to it in the negotiation for the sale and purchase, but its existence as a permanent structure, its necessity in operating the mill, and the right to keep and maintain it, were treated by the parties as a permanent right of the mill-owners; and it was not the intention of the parties, that the plaintiff should warrant against its existence, or the right of the mill-owners to maintain it, and it was not deemed, or considered, by the defendant as an incumbrance which would subject the plaintiff to liability on any covenants, which might be inserted in the deed. Notwithstanding which, the plaintiff, on the 2d day of October, 1851, did sell to the defendant, and convey to him, said land, by deed of warranty, containing the usual covenants against incumbrances, with no exception of said right of the mill-owners to maintain said ditch for the said term of nine hundred and ninety-nine years, whereas it was the' intention of the defendant to purchase said land, and take said deed, subject to said ditch and the right in the owners of the mill to maintain the same; and further, finding that the right to keep and maintain said diteh, for the term of nine hundred and ninety-nine years from the date of the grant, ought to have been excepted from the covenant against incumbrances, but through haste, and by reason of inadvertence on the part of both parties, the right was not excepted therefrom. And the defendant now threatens the plaintiff to prosecute him for damages, on aceount of the existence of said ditch, and the right in the mill-owners to maintain it.

These facts, if properly found by the committee, present a clear case of mutual mistake, which it is always the province of a court of equity to relieve against. 1 Sto. Eq., § 142 and 152 inclusive. The case, then, must depend upon the question, whether the committee proceeded properly in finding them, and acted upon proper evidence; or whether there is anything in the finding of the superior court, which varies the case from that presented in the finding of the committee.

The remonstrance excepts to the finding of the committee, on three grounds.

First. The committee received, in evidence, to prove those facts, certain letters, written by said parties.

Secondly. The facts regarding the existence, character, and necessity of said ditch, and the knowledge thereof by the defendant.

Thirdly. That certain incumbrances on said land were mentioned by the defendant, when said deed was given, and were excepted from said deed. And said remonstrance alleges, and claims that no part of said evidence showed any knowledge in the defendant, of any lease, or the terms thereof.

The finding of the superior court upon this remonstrance is, that the plaintiff, on the trial before the committee, offered to prove, by the evidence and testimony in said remonstrance set forth, the truth of the facts set forth in the bill, and said evidence was admitted, and heard, and considered, by the committee. And among other witnesses, the defendant testified to the notoriety, and condition, and situation of the race-way, or ditch, as claimed by the plaintiff, and that the same was not spoken of by the parties, during the negotiations, but he supposed the owner of the land had control of the ditch, or raceway; and that the committee received said evidence as proper, and was materially influenced and controlled by it in his decision. Whereupon, the court found the facts alleged in the remonstrance, proved, and thereupon disapproved and set aside the report.

In regard to the letters between the parties, the remonstrance does not state their contents, though it alludes to them, as annexed to it. They however have not been annexed, and the court, in its finding, makes no special allusion to them, and as we have only seen one or two of them, it is impossible for us to say, whether they were relevant to the issue or not: it is understood, however, that they were only offered for the purpose of showing that, in the negotiation of the parties, so far as it was shown by the letters, no allusion was made to the ditch. So far as they went, therefore, we do not see but that they were admissible for the purpose of showing, that the existence of the ditch, as an incumbrance, was overlooked by the parties, though they had full knowledge of it, as a fact. In this aspect, they were pertinent to the claim made in the petition, and though of no very great weight in themselves, we yet think the committee was correct in receiving them as evidence.

Secondly. The facts regarding the existence, character, and necessity of said ditch, and the knowledge thereof by the defendant, seem to us to have been clearly admissible. We can conceive of no ground, upon which the existence of the ditch, and the knowledge of the defendant of it, for a period of sixty years, could be objected to. Its existence, as a permanent incumbrance, is the main ground and foundation of the application for relief. If it had no existence, the defendant would have no claim under the covenants in his deed, and the plaintiff would be"under no liability to be relieved against. And if the defendant had had no knowledge of it, surely there could be no claim that he ought, in equity, to give up any security, that the covenants in the deed give him against it. And the character of the ditch itself might, 'and no doubt did, tend very conclusively to show the knowledge of the defendant of it, as an artificial structure. It was so covered for about half its distance, as not to be visible, but when it became visible, it would seem that its inspection would show very clearly whether it was, or was not, an artificial structure, bringing the water from the mill, or whether it was a natural spring which formed the stream that flowed from it, where it was first visible.

The fact that the blacksmith’s shop, and engine-house, on the premises, were excepted from the deed, went to show that it was the intention of the parties to except from it whatever incumbrances there might be upon the land, that the plaintiff had no right to convey.

If we are correct in what has been said, it follows that-the committee, in finding the facts in the case, did not act upon any illegal or improper evidence. Indeed, we are inclined to think that the error of the superior court, in setting aside the report, consisted in reviewing the finding of the committee upon the evidence itself, rather than in confining itself to the simple question of the admissibility of the evidence, to prove the facts for which it was offered. It is always the province of the court, to supply any defect in the report of a committee, in not finding all the facts which are in issue, and which may be important to a decision of the case: but we do not understand that it belongs to the court to pass upon evidence which has once done its proper office before a committee, in enabling the committee to find facts upon it, any more than to review the finding of a jury, upon evidence submitted to it for the purpose. From the existence and notoriety of the incumbrance, its long standing, and the long acquaintance of the parties with it, as a permanent thing, the fact that no mention was made of it in the negotiation, though other incumbrances were mentioned in the deed and excepted, the committee drew the inference, that it was the intention of the parties that it should be excepted from the deed. The court, on the contrary, was of opinion that nothing was done by the parties, from which such an inference could be made. Had this been a mere legal inference, as seems to have been the opinion of the court, it might properly be reviewed, but, as we think it an inference of fact, made by the committee, from other facts and circumstances proved, the inference of the committee must conclude it. Besides, it no where appears that the evidence alluded to was the only evidence before the committee on the point, but assuming that it was, the argument in favor of the finding of the committee is very strong. An express warranty on the sale of personal chattels, does not apply to visible defects, because the fact that the defect was plainly visible is evidence that the purchaser knew it, and did not take his warranty on account of it. This principle does not apply in the case of a warranty by deed, because the terms of a deed can not be contradicted, or varied, by parol, and undoubtedly a man may, if he will be so fool-hardy, make an express warranty in a deed, where he knows that it is broken, at the moment the deed is delivered, and knows also that the fact is well known to the party to whom he gives it. But, ordinarily, we suppose that parties do not, in this open way, intentionally involve themselves in law suits. And we do not see why the plain, open, visible, and notorious character of this incumbrance, connected, as it was, with full knowledge of the parties of its existence, does not furnish evidence that it was not intended by the parties to be warranted against, upon a principle, analogous to that which applies to visible defects, in the sale of personal chattels by parol.

The defendant insists, that the long continuance of the ditch across the land, together with full knowledge thereof on his part, furnishes no evidence of the existence of the grant under which it has been maintained. ■ Whether White had knowledge of the terms of the instrument itself, we do not think important. He knew that the structure had, for very many years, been maintained, and used, by the mill-owners, to convey the water from the mill; and that it was a permanent structure. He could only infer from this, if he did not know the precise terms of the grant, or did not know that there was a grant in fact, that the mill-owners owned the right, as appurtenant to their mill, and that it was a right in fee, even if acquired by adverse use, for the long time it has been in existence, and he ought not now to complain that the right, by the grant itself, is less than he had a right to suppose had been acquired. But he had such knowledge as was sufficient to put him upon enquiry, which in equity is sufficient notice.

The defendant’s counsel seem to suppose that there could have been no intention to except the right to maintain the ditch from the deed, because the parties said nothing about it. But courts will often found decisions and judgments upon the presumed intention of the parties, where nothing has been said. A man is presumed to intend the natural and probable consequence of what he does; and on this principle many persons have been found guilty of the highest crimes. A man is presumed to accept of a conveyance of property, made to him, on the ground that, it being for his benefit, he would naturally wish to receive it; and on this principle titles have been established. Indeed, we always draw inferences from our observation of the usual habits of men, which lead to a great variety of presumptions. These, inferences are the conclusions drawn by reason, and common sense, from premises established by proof; and are as applicable to questions of intention, where the intention of parties becomes important, as to any other disputable fact. It is true, as remarked by Judge Story, that if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief, on the ground that the written paper ought to be treated, as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. But this does not mean that there must always exist direct, and positive, proof that the instrument does not express the true intent of the parties, in order to justify the court in'reforming it. To give any such construction to the rule, would be to deny any right in a court of equity to interfere, unless the instrument could be shown to vary from written memoranda of the terms of the contract from which it is drawn up, or some evidence equally decisive. We do not so understand the rule. And upon the whole case, we are unable to see that the committee acted upon any improper evidence, or that he drew wrong inferences or conclusions from the evidence before him. We therefore advise the superior court to accept the report of the committee, and to grant the prayer of the bill.

In this opinion the other judges concurred.

Decree for plaintiff.