text:
    Day vs. Lockwood and Lockwood vs. Day.
    In an action of account, tile question whether the defendant was, or was not, the bailiff and receiver of the plaintiff, during the time specified in the declaration, is to be determined by the court before the appointment of auditors.
    In this action, matter, which might have been pleaded in bar, can not be pleaded before auditors.
    The auditors may take the account between the parties in this action, up to the time of making their report.
    In an action of account, the plaintiff alleged, in the first count of his declaration, that the defendant, from April 1, 1851, to January 1, 1853, was the bailiff, and receiver, of the plaintiff, and as such had the care and management of the plaintiff’s farm, and farming stock and crops; and in the second 'count, that from April 1,1851, to July 1, 1852, the plaintiff and defendant were partners in buying and selling coal, brick and plaster, and as the bailiff of the plaintiff, the defendant had the care and custody of $2,000 capital advanced by the plaintiff'; and the auditors, to whom the cause was referred, found a balance due to the plaintiff upon each of said counts; and upon a remonstrance against the acceptance of said report, it appeared that the defendant rented the plaintiff’s farm for one year from April 1,1851, to account for the same at the end of the year, and continued in possession a second year, without any new agreement; and that the officer who served the plaintiff’s writ, by his direction attached certain produce of said farm, a part of which decayed, and a part the plaintiff:' sold for less than its value when attached, and applied the proceeds to his own use, and the auditors charged him only with the amount he actually received. Held, that such report ought not to be set aside, because the auditors embraced in their account the proceeds of the plaintiff’s farm during the second year, nor because the account was taken up to the end of the second year, which was three months after the time specified in said declaration, nor because they charged the plaintiff only with the amount he received for the produce sold as aforesaid.
    Where, in an action of aecount between copartners, the auditors allowed to the defendant the sum of $2,236.42, which was the full amount of a note advanced by him as a part of the capital of the firm; it was held, that such report ought not to be set aside, because the defendant, in an action of account previously brought by him against the present plaintiff, had alleged that he had advanced, as capital to said copartnership, $2,000, and had not, at any time before the hearing, claimed that he had advanced a greater sum..
    The unsettled claims of a copartnership, shortly after its dissolution, were, by the mutual consent of the partners, placed for collection in the hands of G., who, after collecting a part of them, paid over all the proceeds except $100, to the defendant in such action, and the court found that, the plaintiff had received more than his share of the partnership property and the defendant afterward requested G. to suspend making further collections, that his account might be made up, and a settlement made by the auditors, who were then •investigating the partnership account; and that in consequence of misunderstanding the object, and purporttof the request, G. ceased making further collections, and some of said claims became uncollectable. Held, 1. That.the directions, given by the defendant to G., did not render him liable for any loss which might result from suspending such collections. 2. That the defendant was not chargeable with the money and accounts, in the hands of G.

      Qu. Whether an action at law will lie to settle a partnership account, while there are debts which remain uncollected, and common property undisposed of. The objection, that such action was -prematurely brought, can not be made by the plaintiff after- the cause has been referred to auditors.
    Where such auditors, in their report, allowed the defendant not only the amount, which he claimed to have advanced to said copartnership, as capital stock, but interest upon it; it was held, that his right to such interest depended entirely upon the understanding and agreement of the parties, and that, where it did not sufficiently appear, from such report, that there was any such agreement, the cause should be recommitted.
    These were actions of account, and were referred to auditors, who reported in favor of Day, in both cases. Lockwood filed remonstrances against the acceptance of their reports, and the superior court for Fairfield county, at the April term, 1855, found the facts therein arising, and reserved the cases for the advice of this court.
    In the suit of Day against Lockwood, the declaration contained two counts. - In the first, it was alleged that the defendant, from April 1, 1851, to January 1, 1853, was the bailiff and receiver of the plaintiff, and, as such, had the charge and management of the plaintiff’s farm, the cattle with which it was stocked, and the hay, grain, and other crops, to account for the joint benefit of the plaintiff and defendant.
    In the second count, it was alleged that, from April 1,1851, to July 12,1852, the plaintiff and defendant were partners in the business of buying and selling coal, brick, and plaster, and the defendant, as such partner, and as the bailiff' of the plaintiff, had the care and custody of a large sum, to wit, two thousand dollars capital advanced by the- plaintiff, to account, &c. The writ was dated January 5, 1853.
    The auditors found due from the defendant to the plaintiff, upon the first count, the sum of $894.25, and also a balance in favor of the plaintiff, upon the second count, which was embraced in their report of the other case, tried before them, at the same time.
    Two of the reasons, assigned in the remonstrance in this case, were found by the court below to be true.
    1. The defendant leased the farm of the plaintiff, for one year from April 1, 1851, to account for the use of the same, at the end of the year, but continued in possession, without any new agreement, for another year. The defendant, before the auditors, claimed that he was not accountable for the use of the farm, for the second year, which had not expired, when the suit was brought, but the auditors charged him with $276.57, for the use of the same.
    2. The officer who served the plaintiff’s writ, by his direction, attached, and took into his possession, eight hundred bushels of potatoes and one hundred and sixteen bushels of oats, the produce of the farm, without the knowledge or consent of the defendant; a. part of the potatoes rotted, and the plaintiff afterward sold the residue of the potatoes and the oats, for $200 less than their value when attached, and applied the proceeds to his own use. The defendant claimed that the plaintiff' ought to be charged with the value of the property, when attached, but the auditors charged him only with the amount he actually received.
    The case of Lockwood against Day, was a cross action, founded upon the same copartnership matters, set forth in the second count of the declaration, in the action in favor of Day. The auditors found a balance in favor of the defendant, of $396.36.
    In the remonstrance in this case, several reasons were assigned by the defendant.
    In the first, it was stated that Day had alleged, in his declaration, in the other suit, that he had advanced $2,000, capital stock, and had not, at any time before the hearing, claimed that he had put in more, and the plaintiff claimed • that the auditors should not allow him any greater sum; but they allowed him $2,236.42, with interest from April 5, 1850. The court, upon this subject, found that the auditors had allowed Day, as capital stock, nothing more than they found that he had advanced as such.
    In the second reason, it was stated that Day put into the copartnership, a note against one Pritchard, dated April 5, 1850, for $2,236.42, and claimed to be allowed that amount, as capital. The plaintiff claimed that the note was put in at $2,000, the amount of capital which each partner was to put in ; that the plaintiff was to guarantee the payment of the note, collect the same, and have the balance for his trouble and expense in the guaranty and collection ; that he expended the sum of $50, in making the collection, and allowed Pritchard a further sum of $100, to effect a settlement; that only $1,900 ever went into the partnership concern, and that $550 was collected by him, long after the dissolution of the partnership. He thereupon claimed, that Day should be allowed no more upon the ndte than the sum which actually went into the partnership business; but that, if the whole amount were allowed him, then a deduction should be made of the two sums incurred for expenses, and in the settlement with Pritchard. But the auditors allowed Day the whole amount of the note, without any deduction.
    Upon this subject, the court found that the auditors allowed Day the whole amount of the Pritchard note, because they found that it was so understood, and agreed, at the time the partnership was formed, and did not allow the plaintiff the two items claimed by him, because he did not, at the trial, present any account of the same, or prove to their satisfaction, that any definite sums had been expended by him, so as to enable them to make any definite finding, on the subject of either claim.
    It was further stated, in the remonstrance, that shortly after the dissolution of the partnership, the uncollected accounts in favor of the company, by the mutual consent of the parties, were placed in the hands of one Griffith, for collection, who collected some of them, paid over the proceeds to the defendant, and refused to pay any portion to the plaintiff; that the defendant afterward requested Griffith to stop his collections, which he did, in consequence of which, some of the debts became bad; and that, at the time of the hearing, Griffith had $100, the proceeds of his collections, remaining in his hands. The plaintiff thereupon claimed that the defendant should be charged with the $100, in Griffith’s hands, and the uncollected accounts, but the auditors refused so to charge him, and left those claims remaining, as partnership property.
    The court found the allegations true, and further found that the request made to Griffith, to stop the collections, was made to enable the defendant to make up his account, so that a settlement could be made by the auditors, who were then investigating the partnership accounts, and that Griffith ceased making further collections, in consequence of his misunderstanding the object, and purport, of the request.
    There were other reasons set forth in the remonstrances, but as they were unsupported by the finding of the court, a statement of them becomes unnecessary.

      Hawley and Minor, for Lockwood.
    In the case of Day v. Lockwood.

    I. The auditors erred, in taking the account for the second unexpired year, until the close of the year, as it could not be known what the state of the account between the parties would be.
    The contract for that year, was one entire contract, furnishing only one cause of action, and that not till the end of the year. Richardson v. Bank of England, 4 M. & C., 165, 172. Sto. Part., § 348, n.
    That the action was premature is available on the merits. 1 Saund. P. & E., 23. 1 Chit. Pl., 442, 3. Stoddard v. Mix, 14 Conn. R., 24. Hills v. Winterbottom, 2 B. & A., 431. 22 E. C. L. R., 16. 1 Camp., 335. 3 B. & P., 582.
    II. Day should have been charged with the value of the potatoes, and the quantity when taken. Through the medium of legal process, he took them into his own hands, and appropriated them to himself, and is accountable for their value at that time.
    In the case of Lockwood v. Day.

    I. The auditors erred, in allowing Day more than $2,000 capital, when in the action first brought, he averred that he put in $2,000 only. Both actions were for the settlement of the same account, mere cross actions for the accomplishment of the same purpose. His own declaration showed clearly that the auditors have made a mistake, and one for which their award should be set aside. Davenport v. Bradley, 4 Conn. R., 389.
    II. They erred, in allowing Day as capital more than was realized from the Pritchard note, and made available during the existence of the partnership ; for the putting in a note as capital, means merely the money realized on it. Capital means that which is used in business. This is evident from the fact that Day did not guarantee the note ; only $1,900 was ever made available to the parties.
    They erred, in charging the whole note, without crediting the company with the discount, allowed to Pritchard, for the purpose of effecting a settlement of the note with him. That amount the company never realized; it was a loss to them, and yet the auditors, instead of throwing that loss upon the company, have thrown it upon Lockwood. If the whole note had been lost through Pritchard’s bankruptcy, or otherwise, the auditors, on the principle thus adopted, would have charged the whole to the company, as available assets, without passing the loss to the credit of the company, and in that way, Day would have recovered all the amount of Lockwood, as though it was all available assets on hand, to be divided, whereas the assets, which remained after the loss, would be all which the parties could be entitled to have divided between them.
    III. They erred, in not taking into the account the moneys and assets in Griffith’s hands, which should all have been charged to Day, because, by his interference, he had made himself chargeable with them. But they should at least have been taken into the account, for the purpose of making a final settlement between them. There can not be an account subsequent to this to settle the same concern; each party having his action against the other from time to time, just as the state of their respective accounts with the firm from time to time may vary, each action still leaving the accounts unsettled.
    IV. Neither partner can ever be indebted to the other, otherwise than through his indebtedness to the firm, and it can never be ascertained, whether either is indebted to the firm, or if so, in what amount, until the close of the concern and the final adjustment of the accounts. Suppose Day to recover here, and afterward himself receive the ¡§ 100 in Griffith’s hands, and the proceeds of the uncollected accounts; then Lockwood must have his second action against Day. A principle leading to such results is inadmissible. The auditors have merely adjusted accounts up to the trial. They have not settled the partnership account. Williams v. Henshaw, 12 Pick., 378, and 11 Pick., 79. Gow., 97-102, 547. Haskell v. Adams, 7 Pick., 59. Smith v. Brush, 11 Conn. R., 359. Holabird v. Burr, 17 Conn. R., 564. Sto. Part., § 348, & n. 4 My. & Craig., 165, 172. Harrison v. Magee, 3 Call., (Va.) 502. Simrall v. O’Bannon, 7 B. Monroe, (Ky.) 608. Warren v. Wheelock, 21 Verm., (6 Wash.,) 323.
    V. In the absence of any agreement in relation to interest, the computation of interest was wrong. Gow, ch. 2, § 4, p. 105; ch. 5, § 3, p. 236, § 4. Collier, B. 2, ch. 3, § 4, p. 308-312. 304 n., 310 n., Perkins’ ed. Holden v. Peace, 4 Ire. Eq., 223. Stoughton v. Lynch, 2 John. Ch., 209. Desha v. Smith, 20 Ala. R., 747. Lynch v. DeViar, 3 Johns. Ca., 303.
    The auditors should have taken the account to the time of dissolution, and ascertained the balance, and upon that balance have charged interest.

      Dutton and Carter, for Day.
    In the c.ase of Day v. Lockwood.

    The course, pursued by the auditors in taking the entire account, was correct.
    I. The declaration covered the greater part of the second year, and the principal transactions of that year. By consenting to a judgment, and the appointment of auditors to take the account for a portion of the year, the defendant waived his right and opportunity to object to the taking of the entire account. Smith v. Brush, 11 Conn. R., 359, 365.
    The bringing of the suit was a virtual termination of the relation, and was so understood by the parties, when the auditors were appointed. They were not appointed till long after the second year had expired, as the record shows.
    It does not appear that any account was taken, of property not in existence at the time when the suit was brought.
    II. The auditors did not err, in relation to the amount charged to the plaintiff for the potatoes and oats ; a part of them rotted before they could be sold, and a part depreciated in price. The plaintiff was tenant in common in the ownership of them, and sold them as soon as possible, and to the best advantage, on joint account. It does not appear,- and was not shown, that the defendant would have realized any more for them. Some of the oats were sold at a less price than the market value, when taken into possession.
    In the case of Lockwood v. Day.

    I. The finding of the court substantially disposes of the first point of the remonstrance. The award was made in a case in which the remonstrating party was plaintiff, and the claim that the defendant should be estopped in this action from recovering more than he had claimed in his writ, in another and cross action, is untenable.
    II. Interest is allowable to a partner, who advances an excess of capital. Practically, the rule adopted by the auditors, tends to the same result, and is unobjectionable.
    III. The claim of the plaintiff, that all the accounts should be charged to the defendant, because some of them might have become uncollectable, can not be sustained. If the auditors could have regard to the state of facts at all, they could only charge the defendant with specific claims, shown to have been lost by the wrongful conduct of the defendant. But his conduct was not wrongful; the delay in the investigation, from which the loss, if any, occurred, was not his fault.
    Nor could the auditors undertake to divide the assets of the partnership, remaining after the payment of all claims.' Their duty ended with an adjustment of the accounts ; and assets, which were not in the hands of either partner, and were not justly chargeable to either, but were in the hands of an agent jointly constituted, they had nothing to do with. Of those the partners are tenants in common, and may make partition.
   Waite, C. J.

Upon examining the copies furnished us, in the present cases, we find that the proceedings have been in some respects irregular, informal, and perhaps defective. But we have not felt ourselves called upon to notice those proceedings, any further, than is necessary, to enable us to dispose of the several questions, which- have been made and discussed before us, by the parties. • Our opinion therefore must be considered as having reference to those questions, and nothing further.

1. The first question made, in reference to the ease of Day against Lockwood, is, that the auditors erred in taking into their account the proceeds of the plaintiff’s farm, during the second year, when that year had not expired, at the time when the suit was commenced. This objection, in our opinion, would have been a valid one, had it been taken at the right stage of the proceedings.

The declaration charges the defendant with having been the bailiff and receiver of the plaintiff, from April 1, 1851, to January 1,1853, and accountable as such, for the produce of the plaintiff’s farm during that time. Whether he was such bailiff or not, was a question, not for the auditors, but for the court, to be tried upon a proper plea, presenting that issue, before the cause was sent to auditors, to take the account.

If, indeed, the defendant had simply pleaded that he was never the bailiff of the plaintiff, that issue must have been found against him, if at any time during the period specified in the declaration, he was such bailiff.

But we see no difficulty in so framing the plea as to present fhe issue, whether, under the circumstances, he was accountable for the use of the farm during the second year, so as to have that question determined before the cause was . sent to auditors.

This court held, in one case, where the plaintiff sued for an injury done to her mill during a period of six years, and it appeared, that during three of those years, she was a tenant in common with another; that, as the defendant had omitted to plead on the joinder of the other co-tenant, the plaintiff might recover all the damages she had sustained during the six years. Branch v. Doane, 17 Conn. R., 402.

Had the defendant, before the auditors, introduced evidence to prove that he was never bailiff, or that he had fully accounted, it would have been their duty, notwithstanding, to have taken the account upon the ground that such defence came too late. The same rule, in our opinion, applies to the defence made before the auditors in the present case. A matter, which might have been pleaded in bar, can not afterward be pleaded before auditors. Com. Dig., Aecompt. E. 11. 3 Wilson, 73-113. Usher v. Spencer, 2 Day, 116.

The precise quéstion before them, is whether the plaintiff or defendant is in arrear. Lacon v. Davenport, 16 Conn. R., 345.

But it is said that the auditors have not only taken the account for the time specified in the declaration, but up to the end of the second year, some three months afterward. If by this we are to understand that they have embraced in their report anything, which was not a part of the joint property during that period, or the produce of such joint property, they have undoubtedly erred.

The rule seems to be well settled, that in this action, the account may be taken up to the time of making the award and this upon the principle of doing justice to the parties. Robinson v. Bland, 2 Burr, 1,086. Smith v. Brush, 11 Conn. R., 359. Holabird v. Burr, 17 Conn. R., 556.

Thus, in the present case, the plaintiff was charged, and rightfully too, with the potatoes and oats, the common property, which he attached in his suit, and afterward sold. It would have been manifestly unjust to award him the whole amount due, when the suit was commenced, and allowed him to retain the” proceeds of that property in addition. They were properly applied in reduction of his claim.

But in a chancery suit, this court has gone still further, and sanctioned the admission of evidence, to show that, after the account had been taken by a committee, and before a final decree, the state of the accounts had been varied. Kendall v. New England Carpet Co., 13 Conn. R., 383.

• In the present case, the use of the farm, for the term for which it was leased, and the produce of it, constituted the partnership property. The appropriation of any portion of it, by one partner, to his own use, rendered him accountable for it, to the other partner. And it makes no difference, whether the property thus converted, was gathered from the farm before, or after, the suit was commenced, provided, at the time of the conversion, it was common property, holden as such under the agreement upon which the suit was founded.

If two persons are joint owners of a ship, or a mill, and one of them, after a suit has been commenced for an account, receives freight or tolls earned by their common property, we see not why he should not be accountable for them, whether they were earned before, or after, the suit was commenced.

If indeed they were to purchase another ship, not with their joint funds, after suit brought, the case would be different, however comprehensive the allegations in.the declaration might be; so, in the present case, had Lockwood continued in possession of the farm for a third year, under circumstances showing that it was under a new agreement, although of the same kind, and upon the same terms as the former, he would not be accountable, in the present suit, for the produce on the farm, during that year.

But for another reason, we think this objection ought not to prevail. Although it is alleged in the remonstrance, thát the account was taken for the whole year, it does not necessarily follow that it embraced any items of property, gathered from the farm during the last three months of that year. And, practically, we know that during these months very little if anything could be so gathered.

To justify us, in setting aside the report for this cause, we think the objection ought to have been more definitely made, showing clearly that the defendant was prejudiced by the decision of the auditors.

In the case.of Lockwood, against Day, it is in the first place urged that the auditors erred in allowing Day the full amount of the Pritchard note, as capital stock advanced by him.

What amount of capital was paid in, by the partners, was a question of fact for the determination of the auditors, depending upon the understanding and agreement of the partners. They might have agreed that the. note should be received at its full amount, or only for the. sum of two thousand dollars, or only for so much as might thereafter be collected upon it.

The court below has found that the note was received at the amount specified in it, because the auditors found, as a matter of fact, that such was the understanding and agreement of the parties. Surely there can be nothing erroneous in that.'

Again it is said, that Day had stated, in the declaration in his suit, that he had put in two thousand dollars, and never, previous to the hearing before the auditors,- had he claimed that he had advanced more.

These facts were' undoubtedly -proper evidence in support Of Lockwood’s claim that Day-had advanced but two thousand dollars; but they were only evidence to be weighed and considered, with other evidence in the case. Day might have shown, and probably did show,, that the allegation in his declaration, was inserted by mistake, in reference to the amount. It did not amount to an e.stoppel, and as testimony in the case might be rebutted by other evidence.

But the auditors did not' allow Lockwood the expenses incurred by him in the collection of the note, and the deduction made upon the final settlement.- And there is a sufficient reason for their so -doing. - He failed to establish his claims to the satisfaction of the auditors. Surely they were not bound to allow claims, not sufficiently supported by evidence.

2. The claim, respecting the money and accounts in the ■hands of Griffith, is equally groundless. Why should Day be charged with them, any more than Lockwood 1 The accounts were placed in Griffith’s hands for collection, by the mutual consent of both parties.

The payments, made by him to Day, were proper, because the report of the auditors shows that Lockwood had already received more of the partnership property, than his share.

The direction given by Day to Griffith to suspend the collection of the accounts, while the auditors were investigating the concerns of the partnership, was not such an act as rendered him chargeable for any loss that might afterward accrue.

Whether an action at law will lie to settle a partnership concern, while there are outstanding debts uncollected, and common property remaining undisposed of, is a question we do not propose to consider, for the reason already stated, that neither party has thought proper to present any such question for our consideration; and if either had, it was a question not for the auditors, but for the court, before the cause was sent to them.

It is obvious, however, that it is in the power of a court of equity, under such circumstances, to do more complete justice to the parties than can be done in an action at law. That court might, by its decree, direct what disposition should be made of the common property, and provide for the collection of outstanding debts, in a manner that could not be done in a court of law. In the present case, however, the common property must remain to be hereafter disposed of, in such manner as the parties may think proper to adopt.

It will hardly do for Lockwood to bring an action at law for the settlement of a partnership concern, before the business has been closed, and after the cause has been referred to auditors, and a balance found against him, then say that no judgment can be rendered against him, because the suit was prematurely brought. His conduct amounts to a waiver of that objection.

The remaining question is attended with more difficulty. The auditors have not only allowed Day the amount which he claimed to have put in as capital stock, but the interest upon it. His right to such interest depends entirely upon the understanding and agreement of the partners; and without any such understanding, the charge of interest was illegal.

It was competent for the parties to agree that interest should be allowed upon the sums advanced by each partner as capital, or that, in consequence of the superior skill of one partner, or his greater attention to business, the other should put in a greater amount of capital, and that the profits should be equally divided. In the latter case, no interest ought to be allowed.

In the present ease, it does not sufficiently appear that there was any understanding, or agreement, of the parties, that Day should be allowed interest upon his part of the capital, and therefore the allowance of interest does not appear to have been rightfully made.

Our advice to the superior court, therefore, is, that the report of the auditors, in the case of Day against Lockwood, be accepted, and that the report, in the case of Lockwood against Day, be recommitted to the auditors, for them to find whether, in fact, there was an agreement that interest should be allowed upon the capital stock invested, and that, if they do not find such agreement, they correct their report, by the disallowance of interest thereon.

In this opinion, the other judges, Storrs and Hinman, concurred.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Monroe and others vs. The Borough of Danbury.
    Where a petition for a highway, within the limits of the borough of B„ was brought to the county court, after said borough had commenced such proceedings as were requisite by its charter, in order to lay out a part of the highway prayed for, and before the county commissioners, to whom the petition was referred, acted on it, caused said part to be laid out and established as a highway; it was held, that it was the duty of the commissioners to refrain from laying out that part which had already become a lawful highway by the proceedings of said borough.
    Where, in such case, in a1 remonstrance to the report of the commissioners, laying out the whole of said highway, the county court, on setting aside such report, rendered a final judgment against the petitioners, and decreed that the respondents should recover their cost; it was held, 1. That such report should have been recommitted: 2. That no special motion for such recommitment by the petitioners was necessary, and therefore that such judgment was erroneous.
    This was a petition, brought by certain inhabitants of the borough of Danbury, to the term of the county court for Fairfield county, holden in December, 1853, praying for the laying out and establishing a new highway, within the limits of said borough.
    The court referred the petition to the county commissioners, who, having heard the same, made their report to said court, at the term holden in August, 1854, finding therein,that the special convenience and necessity of said borough, and its inhabitants, required said road, and laying out the same, and assessing the damages occasioned to the proprietors of the land, over which the road passed.
    Against the acceptance of this report the defendants remonstrated, upon several grounds. In reference to the allegations contained in the seventh ground of remonstrance, the court found, that, on the 16th day of July, 1853, the wardens and burgesses of said borough, in conformity with the provisions of the charter of said borough, after giving notice, laid out a certain highway, within the limits of said borough, appointed freeholders to assess the damages sustained by the persons over whose land the road passed, who, in the same month, accordingly assessed such damages ; that, on the 20th day of July, 1853, they caused assessments to be made, and paid, by those persons owning land, which would-be specially benefited by such laying out, and that said-road, so laid out, became and was, at the time of the hearing by said commissioners, a legal highway, and that said borough had paid for the damages, assessed as aforesaid, more than three hundred dollars.
    The court further found, that the.road, so laid out by said commissioners, running through the land of the individuals, to whom said commissioners assessed said damages, was the same road, of highway, in all respects, and was laid out on the same ground as the road, so laid out by said warden and burgesses, and accepted by said borough, and in no respect different, and at the time said commissioners laid out said highway, and before their final meeting, upon said business of their appointment, the same was an open and legal highway.”
    The county court thereupon set aside said report, and decreed that the respondents recover of the petitioners their costs.
    The petitioners, by motion in error, then brought the case for revision before the superior court, where it was reserved for the advice of this court.
    Hawley, Taylor and Wilson, for the plaintiffs in error.
    I. The proceedings of the borough constitute no bar to the proceedings of the county court. The court had already acquired jurisdiction, and could not be ousted of it, by the subsequent proceedings of the borough. ■ But, if otherwise, those proceedings should have been pleaded by way of bar, or otherwise, before the county court, or before the case was sent to the commissioners.
    II. The existence of a highway for a part of the distance, furnishes no objection to the action of the commissioners of this road, laid over it in part. If there was any improper assessment of damages, there was an easy remedy. Windham and Chaplin v. Litchfield et al., 22 Conn. R., 226, 233.
    III. The subject matter of the objection does not fall within the expression, “irregular and improper conduct,” which imports not error of judgment, but only censurable, or improper conduct.
    •IV. It does not appear that the proceedings of the borough were brought to the notice of the commissioners. But, if any of these objections are available, the case should have been sent back to the commissioners, to ascertain whether the road prayed for, should not be again laid out, over that part of the track, not alleged to be covered by the borough road ; and also, if necessary, to enquire whether the road was, or was not, of common convenience. Windham and Chaplin v. Litchfield et al., 22 Conn. R., 226.

      White, Averill and Booth, contra.
    1. It is a fatal objection to the doings of the commissioners, that they laid out the road, in a great part, over a road already laid out, and completed by the borough.
    2. .The statute, under which this petition was brought, was passed anterior to the charter of the borough, giving it its present power over highways. It was not the intention of the legislature to authorize an Interference with the proceedings of the borough, when acting in good faith, and the case shows that the borough was thus acting, at the time of the interference by the county commissioners.
    3. The commissioners acted improperly, in laying out the road over a road already laid out,- and completed by the borough, after all the damages, which had accrued, had been assessed and paid, thus compelling the borough to pay double damages for the same road.
    The statute, from which the commissioners derive then-powers, in laying out borough highways, gives them no power to discontinue, alter, or in any way, pr manner, vary any subsisting highway, but confines these powers entirely to new highways. Rev. Stat., 591, § 29. It was not the intention of the legislature to authorize an interference with the proceedings of the borough, when acting in good faith, and the case shows that the borough was thus acting, at the time of the interference by county commissioners.
    4. The court had no -power to send the petition back to the commissioners. The power's of the commissioners are exhausted, and the only remedy for the petitioners is to begin de novo. West Boston Bridge v. Middlesex, 10 Pick., 270. Commonwealth v. West Boston Bridge, 13 Pick., 195. Windham and Chaplin v. Litchfield, 22 Conn. R., 226. Winchester and Colebrook v. Hinsdale, 12 Conn. R., 88.
   Storrs, J.

It appears, from the finding of the county court, on the seventh ground of remonstrance, that, when the petition in this case was brought, the borough of Danbury had commenced proceeding with the steps, requisite by its charter, for the purpose of laying out a part of the highway, which is prayed for in said petitionand that afterward, and before the county commissioners had acted on this petition,' that part of the highway had been legally laid out, and established as a highway. These steps, on the part of the borough, were public proceedings, and must be presumed to have been known to the petitioners, and the commissioners. Whether, it would .have been proper or not for the commissioners to lay out the whole of the highway ¡prayed for, if these steps had not been commenced by the borough, previous to the bringing of this petition, we are of opinion that, after those proceedings of the borough had been commenced, the petitioners could not, by bringing this petition, neither could the commissioners, arrest or supersede the proceedings of the borough, and that it was the duty of the commissioners to refrain from laying out, as a highway, that part of the highway, prayed for in this petition, which had already become a lawful highway by the proceedings of the borough; and that the laying out of that part of it constituted such an irregularity on the part of the commissioners, that the county court acted correctly in refusing to accept their report. If, in any case, it would be competent to lay out a highway where there is already an existing one, it is obvious, in the present case, that it was not only entirely unnecessary to do so, but that the effect of it would be to subject the borough to pay double compensation to the owners' of the lands over which it was laid out, which the latter would have no right to claim, and which would be manifestly unjust. - In rejecting the report of the commissioners, there was therefore no error.

But the county court, on setting aside that report, rendered a final judgment against the petitioners, and that the respondents should recover their costs. In this there was error. The proper course was to recommit the petition to the commissioners, for their further action on the subject; because, although, as to a part of the road prayed for, they could properly proceed no further, in consequence of its having been laid out by the borough, they might be of opinion, as to the remaining part, that the special convenience of the borough required that it should also be laid out as a highway, and the petitioners were entitled to be heard on that question. And we do not think that any special motion, by the petitioners, for such recommitment, was necessary. The case is analogous to that of a report of auditors in an.-action of book debt, where, if it is set aside on a remonstrance, the court, of course, recommits the case to the same, or appoints new auditors ; and a similar course should have been taken in this case.

On this point, the judgment of the county court is erroneous, and the superior court is so advised.

In this opinion, the other judges, Waite and Hinman, concurred.

Judgment reversed.


author: Stores, J.

text:
    The State vs. Raymond.
    Where, on the trial of a complaint for keeping spirituous and intoxicating liquors in the store of the defendant, with intent to sell the same, evidence was offered, by the public prosecutor, to prove that, at two different times, the defendant there sold other spirituous liquors, for which sales, it was admitted, that there were then pending two complaints against the defendant ; it was held, that such evidence was admissible.
    This was a complaint preferred, by a grandjuror of the town of Darien, to a justice of the peace, against Stephen Raymond, for keeping spirituous and intoxicatingliquors, with intent to sell the same, in violation of the statute passed in 1854, entitled “An act for the suppression of intemperance.’’
    A trial was had before the justice, and the defendant was found guilty. From this decision he appealed to the superior court for the county of Fairfield, at its August term, 1855, when it was tried before a jury.
    Upon this trial, the attorney for the state introduced one WiHiam Taylor, as a witness, in support of the prosecution, who testified that, in the months of December, 1854, and January, 1855, he purchased of said Raymond, at his store in Darien, at two different times, spirituous liquors, and paid for the same; and this was claimed by the attorney as evidence tending to show that said Raymond did, at the time mentioned in said complaint, keep spirituous liquors, with intent to sell the same.
    It was admitted that there were two complaints against said Raymond, pending in said superior court, for selling to said Taylor the said liquor, so purchased by him. ••
    The defendant thereupon prayed the court to instruct the jury, that, as said two prosecutions were now pending in said court against said Raymond, the sales to Taylor could not be used as evidence to convict, in the case then on trial; because if they could, it would subject Raymond to two or more prosecutions for the same offence.
    The court did not so instruct the jury, but charged them, that, in respect to the liquor sold to the witness, the offence of keeping, with intent to sell, was merged in the offence of an actual sale, and that, in respect to such liquor, the defendant could not be convicted in this prosecution; but that, as the public prosecutor claimed from the evidence in the case, that other liquor, besides that so sold, was kept by the defendant with intent to sell, the sale to the witness was evidence, tending to show the purpose and intent with which the other liquor was kept; that the weight of such evidence must depend much upon the circumstances connected with the sale,—whether made to a customer for money in the ordinary way of trade, or made upon a special occasion for particular reasons, and whether it was an isolated» case, or connected with other sales at the same place, and at about the same time.
    The jury having returned a verdict of guilty, the court imposed on the defendant a fine of twenty dollars^ and he thereupon moved for a new trial, for a misdirection.

      Belden and White, in support of the motion.

      Ferris and Ferry, contra.
   Stores, J.

It is too clear to admit of argument, that, in order to show that the defendant kept the liquor, in question on the trial, in his store, for the purpose of sale, evidence was admissible to prove that he had sold to Taylor other liquor of the same kind in that store ; and the defendant could not, in this ease, have been convicted for keeping the liquor so sold to Taylor, and for which sale he had been prosecuted, since the judge below carefully protected him against such conviction, by informing the jury that evidence of that sale was admissible, not for the purpose of convicting the defendant of keeping that liquor for sale, but only for the purpose of showing the intent with which he kept the liquor, for the keeping of which he was prosecuted in this case.

A new trial is not advised.

In this opinion the other judges, Waite and Hinman, concurred.

A new trial not granted.


author: Hinman, J.

text:
    Parker vs. Middlebrook.
    To maintain trover for a chattel purchased of one, who, though not actually owning the same, yet, as the apparent^ wner, was in possession thereof at the time of the sale, it must be sho\Vn that the'purchaser assumed dominion over the property, after the lawful owner was made known to him.
    The wife of A. during his temporary absence, secretly left his house and went to the town of B., where, for the purpose of avoiding him, she assumed the name of her former husband, transacted business as a feme sole in keeping a boarding-house, and in payment of supplies, bought of the defendant, conveyed by a written instrument, and delivered to him; certain articles of personal property, purchased with her earnings, in B. On the trial of an action of trover, for the recovery of such property, brought in the name of the husband, no evidence was offered of any demand of the property in question, and it was admitted that said action was commenced, and prosecuted, without authority, or direction, from the plaintiff, and the court thereupon granted a nonsuit. Held, that such nonsuit was properly granted, and that, in refusing to set aside the same, the court committed no error.
    This was an action of trover, brought in the name of Ephraim Parker against George W. Middlebrook, and tried before the city court for the city of Bridgeport, upon the general issue, on the first Monday of October, 1854.
    On the trial, it was proved, on the part of the plaintiff, that, until the month of February, 1852, he was a resident of Utica,-in the state of New York, where he resided with his wife and family. In said month and year, he temporarily left his wife and family, and went to the state of Georgia, intending to return in the autumn of said year, which intention he then announced to his wife. She then told him, that, if he returned, he would not find her there, to which he replied that, “ if she left him, he would follow her to the ends of the earth.” During his absence, he wrote occasionally to his wife. In November, of the year 1852, his wife, hearing that he was about to return home, secretly left her and his home in Utica, for the purpose of avoiding him, and came to the town of Bridgeport, where she continued to reside with her family and his children; keeping her residence and history a secret from her husband. After her departure from Utica, she heard nothing from her husband directly, but she and her family believed him to be in the state of California.
    After her arrival in Bridgeport, she- was known and called by the name of Robbins, which was the name of her first husband, now deceased, and of her children by her first husband living with her, and which name she thus assumed, in order, as far as possible, to prevent her present husband from hearing of, or finding her, although her true name and history were not kept secret, and were not unknown in the various neighborhoods in which she, from time to time, resided.
    While in Bridgeport, she was occupied in various employments, but lately in keeping boarders, and in the course of said occupation, she traded with the defendant, who was then carrying on the business of a butcher. At the time this action was brought, certain portions of her book account with the defendant, being for meat furnished for her and her family, were unsettled, and a balance was due to him thereon. About the 10th day of June, 1854, for the purpose of securing said claim, she executed to the defendant a conveyance, or bill of sale, of the property in question, consisting of furniture, crockery, and other articles, by virtue of which, said property was delivered up to him, and he entered into and remained in possession of the same. Said property had all, or chiefly, been purchased by the wife of the plaintiff of record, since her residence in Bridgeport, and out of the avails of her said'employments, and the value thereof, or of a part thereof, was shown. It was admitted that said suit was brought and prosecuted, without any authority or direction of the plaintiff, except such as may be inferred from the facts, aforesaid, but was brought by direction of the wife of the plaintiff.
    After he had introduced the foregoing evidence, the plaintiff rested his cause, and the defendant thereupon moved for judgment, as in case of nonsuit, and that the cause be erased from the docket of the court, and dismissed; claiming that the action was not brought, or prosecuted, by or with the knowledge, assent, or permission, of the person whose name appeared as plaintiff on the record in said cause, and because it appeared from said evidence also, that the person, by whose authority and direction alone said cause had been brought and prosecuted, had no authority to bring said action, in the name of the plaintiff on the record, and had no authority to prosecute the same in the name of such plaintiff.
    The court granted the motion of the defendants, and ordered judgment, as in case of nonsuit, to be entered in the cause.
    The court having refused to set aside such nonsuit, the plaintiff, by motion in error, brought the record before the superior court, where the judgment of the city court was confirmed. He then, by motion in error, brought the case before this court.

      Blake and Treat, for' the plaintiff

      Loomis 8f Warner, and Beardsley 8f Seeley, for the defendant.
   Hinman, J.

The court do**not feel called upon to determine the interesting questions, relating to the powers of a wife, as the agent of her husband, where she has, without cause, abandoned him, in another state, and, unknown to him, has been transacting business • here, as a feme sole, which have been argued before us, in this case ; because, if we admit,—which we do not, except for the purposes of this case,—that a sale of property, acquired by her while thus transacting business, for the purpose of paying a debt contracted in that business, is void, on the ground that the property belongs to the husband, we still think this action must fail; and the city court was correct in ordering the nonsuit.

The action was trover; the gravamen of which is the conversion of the property, for which it is brought. But a conversion is a wrongful, or tortious act; andá. mere purchasefrom a party in possession, who is th^ apparent, owner, made in good faith, and in the regular course of business, is not a conversion against the lawful owner. Such a purchaser can not be in a wofse condition than the finder of' a chatterwhich has béen casually lost; and it ought, at least, toJüTshown that he has assumed dominion over the property, after the title of the lawful owner has been made known to him; which is usually evidenced by showing a demand of iijpy the owner, and a refusal to deliver itup.J No such demand was made, in this case, before'tfie siiiFwas instituted. We think, therefore, that upon the facts proved, a nonsuit was properly ordered, and that, as yet, the ¡plaintiff has no right of recovery. He never resided in Connecticut, and is ignorant that his wife is héie^pr that any suit has been commenced in his name. Indeed he has no knowledge of the property, which his wife now claims in his name. But during his temporary absence from his place of residence at Etica, N. Y., his wife, for the purpose of avoiding him, secretly left his home, came to Bridgeport, where she has continued to reside since 1852, transacting business as a v feme sole, and a portion of the time engaged in keeping a boarding-house; and for the purpose of preventing her husband from finding her, assuming the name of her former husband. To supply her boarding-house, she purchased provisions of the defendant, and, in payment of his bill, executed a conveyance of the property, which, she now claims, belongs to her husband, and which had been purchased, by her, since her residence in Bridgeport, from the avails of her earnings there. It was said that the defendant might have known her true name and history, because it was not kept secret, in the neighborhood in Bridgeport, where she resided. This may be so, undoubtedly, but it does not, under the circumstances, amount to evidence that he did know it; and there is nothing to indicate that the defendant was not a bona fide purchaser from one having every appearance of being the true owner, trusting to those appearances. Under these circumstances, we think there is no error in the judgment of the superior court, sustaining the nonsuit.

In this opinion, the other judges, Waite and Storks, concurred.

Judgment affirmed.


author: Hinman, J. Waite, C. J.

text:
    Hill and others vs. Meeker.
    A deed of land,not recorded, until after the death of the grantor, is valid against a purchaser from his heir at law, although such purchaser has no knowledge of the existence of the deed.
    In the year 1794, M gave a deed of land to H, who in the year 1800, deeded the same land to E, the daughter of H, and the wife of M. M continued in possession until 1831, when he died, leaving A, his only son and heir at law. From the death of M, A occupied said land until 1840, when, to secure certain notes, he mortgaged the premises to the plaintiffs’ ancestor, who had no knowledge of the existence of said deeds, to H and to E. and which remained unrecorded until 1850, when they were put on record, and E executed the deed, under which the defendants claimed title to the premises. Held, that A took nothing by inheritance, which he could convey, and that a bonajide purchaser, from him, who had no knowledge of said deeds to H and E, in an action of ejectment against the grantees of E, was not entitled to recover.
    This was an action of ejectment, brought to the superior court for Fairfield county, by William H. Hill and others, against Francis Meeker, to which the defendants pleaded the general issue.
    The plaintiffs, who were the children and heirs at law of John L. Hill, deceased, claimed title to the demanded premises by virtue of a mortgage deed, from Arza Meeker to said John L., conditioned for the payment of two promissory notes, together amounting to $5,900.
    By agreement of the parties, the finding of the committee, appointed by the court in the case of Hill and others v. Meeker, 23 Conn. R., 592, which was between the same parties, was made part of the record in the present case, so far as the same was applicable théreto.
    The case was thereupon submitted to the superior court, and by that court was reserved for the advice of this court.
    A statement of the material facts in the case is embraced ' in the report of the committee, appointed in the former case, and in the opinion of the court in the present case.

      Butler 8f Carter and Averill, for the plaintiffs.

      W F. Taylor and Ferry, for the defendants.
   Hinman, J.

In this action, the plaintiffs seek to recover two tracts of land, situated in Reading, which were deeded to their ancestor, John L. Hill, by a mortgage deed, executed December 4th, 1840, by Arza Meeker, to secure the payment of two notes, then due to the grantee, and now held by the plaintiffs, and which have not been paid. There is no controversy in respect to the title to most of the land demanded. But the dispute is confined to twenty acres, parcel of one of the tracts, to which the defendant claims that Arza Meeker never had any title, and consequently conveyed none, by his mortgage deed. The facts, respecting the title to this twenty acres, appear in the finding of the committee, appointed to find the facts, on a bill to foreclose the defendant’s title to the same premises, which are demanded in this action. This finding, though made in another case, by the agreement of the parties, has been made a part of this case, so far as the facts thus found are applicable to it.

From this it appears, that Arza Meeker was the son and only heir of Jonathan Meeker, who owned all the land mentioned in the declaration, and in 1794, conveyed the twenty acres to Richard Hawley, arid Hawley, in 1800, conveyed the same twenty acres to his daughter, who was the wife of said Jonathan, and the mother of Arza. These two deeds were not recorded till January, 1850; but had been kept in the exclusive possession of Mrs. Meeker, until her husband’s death, in 1831, when she gave them to her son, Arza, to be recorded; but he, without her knowledge, kept them in his possession till 1850, when they were taken to record. When Hill took his mortgage, he had no knowledge of the existence of these two deeds.

It is apparent from these facts, that the only question is,' whether the unrecorded deed from Jonathan Meeker to Hawley, and the deed from Hawley to his daughter, so devested Jonathan of his title to the twenty acres, that, at his death, his son Arza took nothing, by inheritance, that he could convey, or mortgage to a bona fide purchaser, who had no knowledge of the deeds. The court are of opinion that they did so devest him of his title. We come to this opinion, from the language of the statute, requiring deeds to be recorded. By that statute, “ all grants and deéds of bargain and sale, and mortgages of houses and lands, shall be recorded at length, by the register, or town clerk, of the town where such lands and houses are ; and no deed shall be accounted good and effectual to hold such houses and lands against any other person or persons, but the grantor or grantors, and their heirs, unless recorded as aforesaid.” «'

Now, as it is by force of the statute alone, that deeds for any purpose are required to be recorded, it follows that they are as effectual without recording, as they were at common law, except so far as the statute has made them ineffectual. But, by the statute, they shall not be accounted good against any person but the grantor, or grantors, and their heirs. Of course, they remain good against the grantor and his heirs. Would the language have been any clearer, if it had expressly said that unrecorded deeds shall be good and effectual against the grantor and his heirs, but void against all others ? We can not think it would. Jonathan’s deed, then, was good against him, he being the grantor; and it was good against Arza, his only heir, by force of the statute. But as it was good against Jonathan, he, at his death, had no title to transmit to his heir; and Arza, taking nothing by inheritance, had nothing that he could mortgage to Hill.

It is said, however, that Jonathan Meeker, during his life, and his son afterward, appeared to the world as the owners of the twenty acres; and that their attaching creditors could levy upon the land, and that bona fide purchasers, without notice, under our recording' system, might lawfully take a conveyance of it, and that they could hold it against Mrs. Meeker, who had neglected to cause her deeds to be recorded. So far as Jonathan Meeker’s creditors, or bona fide purchasers, were concerned, this was true undoubtedly. He once had a good title, and the record did not show that he had, in any way, parted with it; and the statute says, expressly, that no deed shall be good against any other person than the grantor and his heirs, unless it is recorded. Creditors and bona fide purchasers of Jonathan, not being his heirs, would, therefore, hold the title which he once had, and which the record did not show that he had been devested of. But we think there is a clear distinction between a purchaser from him, and one from his heir, Arza. In relation to a purchaser from Arza, the difficulty is, that he never had any title. The statute does not. operate to cast any title upon him, because his father’s deed was not recorded, but the reverse, making the deed good against him, as his father’s heir; and we do not see how his purchaser can acquire a title from him, which he never had. The object of the statute was to protect creditors and purchasers of the owners of land, from the effect of their grantors’ unrecorded deeds. But to give it the effect of creating a title in an heir, when he never had any in fact, is, we think, going further than the language, or the spirit, of the act will justify.

For these reasons, we advise the superior court, that the plaintiff is not entitled to recover the twenty acres, claimed by him.

In this opinion, Storrs, J., concurred,"

Waite, C. J.

Jonathan Meeker, being the owner in fee of a farm of about one hundred and eighty acres, in the year 1794, executed a deed of twenty acres, parcel of the same, to Richard Hawley, who, in the year 1800, gave a deed of the same parcel to his daughter, Esther Meeker, the wife of Jonathan.

Meeker continued in possession of the whole, until the year 1831, when he died, leaving Arza Meeker, his only son and heir at law. Arza Meeker continued to occupy the farm, including the twenty acre tract, which had never been fenced off from the residue of the farm, until the year 1840, when he mortgaged the whole property to John L. Hill, to secure the payment of two promissory notes, amounting to nearly six thousand dollars.

The deeds to Hawley and Mrs. Meeker were never recorded, until the year 1850, when she executed a deed of the twenty acre tract to Frederick W. Meeker and the defendant, under which deed the defendant claims title. Hill had no knowledge of the existence of the two deeds to Hawley and Mrs. Meeker, when the mortgage to him was given. The plaintiffs derive their title from him, and the question submitted to us, is, which party has the better title to the twenty acre tract; the plaintiffs, by virtue of the mortgage to Hill, or the defendant, under the deed to Hawley.

The statute provides, that “ all grants, and deeds of bargain and sale, and mortgages of houses and lands, shall be recorded at length, by the register or town clerk of the town, where such lands and houses are; and no deed shall be good and effectual to hold such houses and lands, against any other person or persons, but the grantor or grantors, and their heirs, unless recorded, as aforesaid.” Rev. Stat., p. 33.

This statute was very critically and carefully considered, nearly forty years ago, by the supreme court of errors of this state, in the case of French v. Gray, and the principles there established, have ever since been considered as settling the true construction of the statute, and the law applicable to unrecorded deeds. 2 Conn. R., 92.

A majority of the court there held, that a deed of land, unrecorded, is no evidence of title, and, as such, can not be produced in court, against any other person than the grantor and his heirs. “And ” they say, that “ such are the express words, and such has been the universal construction of the statute.”

That, “ until the deed is recorded, the fee in the land remains in the grantor, notwithstanding his deed; and any suit for the recovery of the land, from any person, other than the grantee, and those claiming under him, must be brought in his name; and a subsequent conveyance by him to a bona fide purchaser, without notice of the prior deed, who causes his deed to be first recorded, will pass the fee to him.”

The reason why a subsequent purchaser, with notice, shall be postponed to the prior grantee, is founded upon his fraud in taking the conveyance. For that reason it is treated as void against the prior grantee.

In the case under consideration, it becomes necessary to consider only the effect and operation of the deed to Hawley, while it remained unrecorded, as that is the foundation of all the defendant’s title, and if that fails, the whole superstructure falls. Hawley could convey no greater interest in the property to his daughter, than he acquired by virtue of his deed from her husband, the original owner.

Now the case cited conclusively shows, that so long as their deeds remained unrecorded, no title passed to either of them, and' the fee of the land continued in Jonathan Meeker, during his whole life. He alone could sustain an action for disseisin by a stranger, and he could convey to a bona fide purchaser, having no knowledge of his prior deed, an absolute and perfect title in fee. And so are all the authorities. And this, say the court in the case referred to, shows that the fee remained in him.

But if he owned the fee, so that he could convey a perfect title, what became of his. interest when he died ? It could not, upon any. principle, pass to Hawley, were he living. Meeker’s death could give no greater effect to his deed, executed more than thirty years previously, than it had when originally delivered.

But the answer to the question is obvious. All the right, title, interest and estate of Jonathan Meeker, upon his decease, by virtue of the law of inheritance, passed to his son, as his heir at law. The latter acquired that interest in, and power over, the property which belonged to the father.

Hence it follows, that any conveyance made, or mortgage given by the son, while Hawley’s deed remained unrecorded, would stand precisely upon the same ground,' as a conveyance, or mortgage, made by the father, in his lifetime. And according to all the authorities, had the mortgage to Hill been given by the father, it would have been perfectly good, as against Mrs. Meeker, and all persons claiming under her. And I am unable to see, why precisely the same effect is not to be given to the deed of the heir.

But even admitting that, after the deed to Hawley, the fee, strictly speaking, did not remain in Meeker, yet it can not be denied, that he retained such an interest in the property, by whatever name it may be called, as that he could give a valid mortgage, or convey an absolute estate in fee simple. The authorities lipón this subject are all one way. What then became of that interest, upon his decease, unless it descended to his heir at law ?

This court have repeatedly said, that it is the policy of our law, that all conveyances of real estate, shall be made to appear on record, for the benefit of the parties and all others interested. The object is to prevent fraud, and give security and stability to title. And says Williams, C. J., Our courts have ever considered it their duty to give such a construction to our statutes, as will continue this salutary protection.” Pettibone v. Griswold,,, 4 Conn. R., 158. North v. Belden, 13 Conn. R., 380.

So far as my researches have extended, this is the first case in the whole history of our jurisprudence, in which it has ever been holden, that an unrecorded deed shall defeat the title of a bona fide purchaser or mortgagee, having no knowledge of the existence of any such deed, unless it were recorded within a reasonable time.

There is nothing in the present case, calling for any particular sympathy, in favor of either the defendant or Mrs. Meeker. She suffers the deed from her husband, under which she claims title, to be kept from the records, for more than half a century; its existence, so far as the case shows, unknown to the world, with the exception of the parties, herself, and her son. During all this time, the husband and son continue in possession, with nothing indicating any title in her, except her right of dower in her husband’s estate.

In the mean time, her son, being the heir of the person who had the record title, mortgages to Hill, a bona fide creditor to a large amount, having no knowledge of the existence of the deeds under which she claims title, and seeing nothing to awaken any suspicion upon that subject.

Some ten years after this mortgage was given, she causes her deeds to be recorded, and a conveyance to be made, to enable her son to carry out the fraud practiced upon Hill. In my opinion, neither she, nor the defendant, has any law or any equity upon their side. It is better, far better, that she should suffer by such gross • negligence, than that, in the language of Chief Justice Williams, “ the valuable provisions of our statute, relating to the recording of deeds, should be nullified, or its vitality impaired.” Hart v. Chalker, 14 Conn. R., 81.

Judgment for the defendants.


text:
    Dikeman vs. Taylor.
    Where the premises, in a deed of land, were described as “ the north half of a certain lot of land, with the store standing on said north half,” and the whole lot was bounded in said deed, and said north half described as “ bounded south on the grantor’s'own land,” and a corner of said store, which was a permanent building, projected a short distance beyond a line drawn from a point in the middle of the front line of said lot, to a point in the middle of the rear line thereof; it was held, that said deed conveyed the north half of said lot as designated by said line, and also so much south of said line as was covered by said store.
    On the trial of an action of ejectment, it was proved that the plaintiff and defendant, who were adjoining proprietors of land, each claiming to own the premises in controversy, had each occasionally occupied beyond his own line, and that the defendant had given the plaintiff a written notice not to trespass upon his land, claiming, in it, to own all the land north of a certain line mentioned therein, and the plaintiff claimed to have proved an ouster by the defendant, and the court submitted such notice, in connection with evidence of the acts of the parties, to the jury, instructing them that an ouster was not constituted by mere words, but that the notice might serve to give a construction to such acts, as the defendant had committed upon the land beyond his line, and directing them to find whether said notice, in connection with the acts proved, was, or was not, sufficient evidence of such ouster; it was held, that such course was correct.
    This was an action of ejectment for a parcel of land, lying in the town of Westport, tried at the term of the superior court for Fairfield county, holden in August, 1855.
    The plaintiff and defendant each claimed title to the premises in question, by deeds from one Charles Fox.

      It was admitted on the trial, that on the day of Fox was the owner in fee of a certain piece of land, embracing that in dispute in the present action; that, at that time, the store hereinafter mentioned, stood on the northern part thereof, and had stood there for more than forty years; that subsequently Fox erected a butcher’s shop adjoining said store, and thereafter occupied said store and shop, himself, until when he leased said store to the defendant, who thenceforward occupied it until November 3d, 1849, when Fox, executed and delivered his deed of that date, to the defendant, under which the defendant claims title to the premises in question. The property, conveyed by said deed, was described therein as follows: “the north half of a certain lot of land lying in Westport, the whole lot being about forty-one feet front, and about ninety feet deep, with the store standing on said north half; the whole lot is bounded north by Charles Allen, east by' highway, south by Ebenezer Jessup, and west by Saugatuck river; and the north half is bounded south by my own land.”
    The defendant thenceforward, and up to the time of the conveyance, hereafter mentioned, to the plaintiff, occupied the whole property, described in his aforesaid deed from Fox, claiming it as his own, and occupied said store up to the time when this action was brought, and all the property lying north of a straight line, drawn from a point in the middle of the front to the middle of the rear line thereof.
    Afterward, on the 24th day of March, 1854, Fox executed and delivered to the plaintiff, a deed of that date, under which the plaintiff claimed, and in which the premises were described as follows: a “lot of land, situated in said West-port, bounded north by Solomon G. Taylor, east by highway, south by Ebenezer Jessup, and west by Saugatuck river, said lot of land being about twenty feet front, and about ninety feet deep, with the butcher’s shop thereon standing; it being, that part of the lot which I bought of Samuel Avery and wife, which is not conveyed to Solomon G. Taylor, by deed bearing date the 3d day of November, 1849, and recorded in the record of lands of said Westport, intending to convey to said grantee all the privileges reserved in said deed to said Taylor, to which deed reference is had for more particular description.”
    It was also admitted, that said Saugatuck river is at that place a navigable river, where business is done by shipping, and that the ground in the rear of said store, as well as that in the rear of said butcher’s shop, is chiefly a wharf on said river in its navigable part; that the part thereof belonging to the defendant, by said deed to him was never by fence, or in any other way, separated from that belonging to the plaintiff by his deed, unless in part, as hereinafter mentioned.
    The plaintiff claimed, upon the facts, that he was entitled to all the land lying south of a line drawn from a point in the middle of the front line, to the middle of the rear line, at the edge of said wharf, including land covered by a part of said store of the defendant, the same standing where it stood when Fox conveyed to the defendant, and where it has ever since stood.
    This claim of the plaintiff the defendant denied, and insisted that, by said deed to him, he became, and was, entitled to all the property so conveyed by said Fox, which lies north of a line drawn direct from said point, in the middle of the front line, to the south-west corner of said store, and thence running in a continued straight course to the said rear line. It appeared that a line drawn in a direct course from said point in the middle of the front line, touching said south-west corner of said store, to the said rear line, would give the defendant somewhat more, but how much more was not shown, than just one-half of the whole property owned by said Fox.
    Each party requested the court to instruct the jury, in conformity with his claim.
    The court charged the jury, that, if they should find that the store of the defendant, at the time of said deed to him, was not a temporary building, but a building permanent in its character, the removal of which was not contemplated by the parties, the defendant was entitled, on the facts aforesaid, to all of said land lying north of the line drawn from the middle of the front to the middle of the rear of the whole lot, and also to all south of said line, which was covered by said store; but that the plaintiff was, on the facts aforesaid, entitled to all that so lying in the rear of said store, south of said line, except that covered by said store.
    The defendant also denied that he had ever ousted the .plaintiff from any part of said land, so in the rear of said store, and south of said line drawn as last mentioned.
    The plaintiff admitted, that, before the present action was brought, he erected arid had ever since occupied an addition to his said butcher’s shop, extending some distance along the rear of defendant’s said store and adjoining thereto; that at that time he, the plaintiff, placed a line of dirt and stones, extending beyond the store westwardly towards the river, in a line which was a part of a straight line, drawn from a point in the middle of the front to the middle of the rear, for a short distance westward of the defendant’s store, but for the residue of the distance to the wharf, there was nothing to separate the plaintiff’s and defendant’s lands.
    To prove an ouster by the defendant, the plaintiff testified that the defendant had, in the use of his said store from time to time, thrown out barrels and boxes on the said wharf promiscuously, in one place and another, as it happened, and ■ sometimes a little south of said line last mentioned, and on cross-examination, he testified that he himself had, during the same time, in the use of said butcher’s shop, from time to time, thrown out barrels on said wharf in like manner, and sometimes a little over and north of said line, and had, during the same time, in the use of his said store, from time to time, and almost, or quite, weekly, driven his horse and wagon over the said wharf, as well that part lying north of said line, as that lying south thereof; but he did not testify that the defendant ever, at any time, after he so placed said line of stones and dirt, threw any barrels or boxes on, or exercised any act of ownership on or over, the part of said wharf so lying south of said line last mentioned,, but testified that he did not know that the defendant had ever done either, since said line of stones and dirt was so placed as aforesaid. He also gave in evidence the following notice from the defendant to him:
    Westport, Sept. 6, 1853.
    To John B. Dikeman, Esq.
    Dear Sir: I hereby forbid you to trespass, either by yourself, or any other person, in any way, on any part of my property adjoining you, on penalty of the law. And I hereby give you notice, that I claim to own all the land, north of a line running from a middle point between us in the front line, in a straight and direct line to the south-west corner of my store, and thence in a direct continuous line to Saugatuck river.
    Solomon G. Taylor.
    The plaintiff testified that, before the defendant gave him said notice, he had made arrangements and preparations for building said addition, of which the defendant had knowledge.
    The defendant testified, that said barrels and boxes were thrown out by him for mere occasional convenience, and without reference to any line between his property and that of the plaintiff, and that after said line of stones and dirt was so placed, he never placed any barrels or boxes or other things on said property, south of said line, nor had any possession over, nor exercised any act of ownership on, or over the said property so lying south of said line; and that before he gave said notice to the defendant, the latter had made preparations within the defendant’s knowledge, for erecting said addition, and had laid the stone underpinning thereof.
    There was no other evidence offered by the plaintiff, or before the jury, of any occupancy or possession, by the defendant, of the said property in the rear of said store, or other buildings, or of any act of ownership thereon by the defendant, or of any ouster by the defendant.
    The defendant insisted and prayed the court to instruct the jury, that said evidence was no evidence of such ouster, and. that by the testimony, no ouster was shown, and that such evidence was not sufficient to prove, and that it did not tend to prove, such ouster.
    The court did not so instruct the jury, but instructed them that said notice was admissible in evidence, as tending to prove an ouster, by the defendant, of the plaintiff from the premises, claimed by the defendant to belong to him in said notice; that an ouster was an act, and that mere words did not constitute an ouster, but the notice was claimed to contain an implied admission that the defendant was in possession, forbidding the. plaintiff’s entry, and that, in connection with acts of ownership upon the land in the rear of the store, the notice might furnish evidence to show the line to which the defendant claimed title, and give a construction to the defendant’s acts, but that whether said notice and the acts of the defendant proved were ' sufficient evidence of ouster, was a question of fact for the jury.
    The jury returned a verdict in favor of the plaintiff, and found for him to recover of- the defendant, the seizin, and peaceable possession of the demanded premises, except the land covered by the defendant’s store.
    Both plaintiff and defendant thereupon moved for a new trial, claiming that the rulings of the court, adverse to their respective claims, were erroneous.
    Dutton, and Carter, and Ferry, for the plaintiff.
    I. The court should have charged the jury, that the line claimed by the plaintiff was the true line.
    Where a grant is made in explicit terms, subsequent inconsistent expressions will be rejected. Worthington v. Hillyer, 4 Mass. R., 196. Cutler v. Tufts, 3 Pick., 272. 2 Greenl. Cr., 307, n. 1.

      Falsa demonstratio non nocet. 1 Greenl. Ev.,§ 301. The expression, “half of the lot,” is a definite legal term, and admits of no doubt as to its extent.
    The court erred, in submitting to the jury the question, whether the building was of atemporary, or permanent character ; and whether the parties contemplated its removal or not. Whether'the parties to the deed would be affected by such circumstances, or not, the plaintiff ought not to be affected by anything except what appears on record. Nothing appears there, to lead him to make any enquiry.
    If the line of the store was to be followed, the line west of the store should be further north than the line drawn by the plaintiff. Both parts of the description should be complied with; the deed should, if it conveys the land covered by the store, also convey half of the lot and no more. Nichols v. Turney, 15 Conn. R., 101.
    II. The charge of the court, as to the evidence of ouster, was correct.
    1. The only question is, whether the evidence tended to prove an ouster, and not whether it was sufficient.
    2. Where a man enters into a piece of land, he takes possession, in contemplation of law, of the whole which he claims.
    3. The notice is an admission that the defendant was in possession of the land south of the plaintiff’s line.- Giddings v. Canfield, 4 Conn. R., 482.
    4. The defendant is claiming title to the same land in this case.

      Hawley and Wilson, for the defendant.
    1. As the defendant’s deed was first given, he takes all that deed purports to give, and without reference to the subsequent deed to the plaintiff, who stands on the same ground as if Fox were the plaintiff.
    If there be any ambiguity in the defendant’s deed, it is to be resolved, unfavorably to the plaintiff, and not to the defendant, as it would be if Fox were the plaintiff.

      2. The expression, “ northern half,” does not necessarily mean just a moiety. In its popular signification, it means about half, more or less, a mere conjectural estimate of quantity, measure or distance.
    As matter of description, it yields to metes and bounds, courses and distances; indeed to every other description with which the term, construed as signifying an exact moiety, would be inconsistent.
    Generally, description by quantity yields to any and every other ordinary mode of description. Newsom v. Pryor, 7 Wheat., 7. Belden v. Seymour, 8 Conn. R., 19. Shipp v. Miller, 2 Wheat., 316. Powell v. Clark, 5 Mass. R., 355. Mann v. Pearson, 2 Johns., 37. Jackson v. Barringer, 15 Johns., 471. Nichols v. Turney, 15 Conn. R., 102.
    3. The defendant’s deed clearly gives him the whole store, and as clearly gives the land it stands on. Allen v. Scott, 21 Pick., 25. Bacon v. Bowdoin, 22 Pick., 401. Shep. T., 94.
    The defendant’s line then runs from the front middle point, to the south-west corner of the store, and must be a straight line between those points. Thence the line should be a straight line to the dock, to some point on the dock; and this, whether it ran in the same course with the line to the corner or not. Such course first and naturally suggests itself, and if there be doubt, it is to be resolved in the defendant’s favor. A zig-zag line, bringing the plaintiff round in the rear of, and contiguous to, the defendant’s store, could not have been intended, especially as this cuts the defendant off from much of the wharf, in the rear of the store, the enjoyment of the whole of which is essential to the full, or convenient, enjoyment of the store. A line run for any purpose will be intended .a straight line, unless there be something else requiring a different line.
    4. The defendant’s boundary on the west is, by his deed, the river only, whereas if the plaintiff runs - back of his store, it is partly west by plaintiff. So the plaintiff’s eastern boundary is, by his deed,'.the highway only; whereas, if he runs round back of the store, it is partly east by the defendant. These considerations are important in determining the intent of the parties, as to the dividing line, and show clearly th'at they intended a straight line. The same considerations show that the parties intended a continuous straight line, from the front middle point, touching the south-west corner of the store, to the dock.
    5. On the question of ouster, the court should have charged as the defendant claimed. The plaintiff’s testimony showed there was no ouster, and so the- court should have told the jury. The notice was indeed an assertion of claim of title, but no evidence whatever of possession'; and as it was given as a mere prohibition of the plaintiff, to take possession, or to trespass thereon, it did not tend to prove that, after the plaintiff had thus taken possession, the defendant entered into possession and ousted him. But the plaintiff’s own testimony showed, that, at the commencement of the action, the defendant was not in possession at all, and that the plaintiff was not ousted.
   Hinman, J.

The parties in this case were adjoining proprietors of lots in the village of Westport, which were bounded on the east by a highway, and on the west by Saugatuck river. They both claimed under deeds from Charles Fox, but the defendant’s deed was first given, and conveys all that it purports to grant, while the plaintiff’s deed expressly describes his lot, as that part of the land which was not conveyed to the defendant. The controversy was in respect to the dividing line between the lots; and both parties claim a new trial, for the error of the judge in charging the jury. The defendant also asks for a new trial, on the ground that there was not sufficient evidence of ouster, to be submitted to the jury. We do not advise a new trial, on any point; being satisfied that the course, adopted by the court, was correct, under the circumstances. In respect to the dividing line between the parties, the main object is to get at the true meaning of the deed to the defendant. That deed is dated the third of November, 1849, and the property-conveyed is described in it, as “ the north half of a certain lot of land, lying in said .Westport, the whole lot being about forty-one feet front, and about ninety feet deep, with the store, standing on said north half. The whole lot is bounded north by Charles Allen, east by the highway, south by Ebenezer Jessup, and west by Saugatuck river; and the north half is bounded south by my own land.” This description was substantially correct, in respect to the whole lot, but was not a full, or precise description of it. There was a trifle over forty feet on the front line, by the highway, but only twenty-two feet, five inches, on the rear line, by the river; and the store, instead of standing on the north half, projects into the south half, at its south-west corner, in such manner, as to render it impossible to include it in the north half of the lot, provided the line is straight from the centre of the front, to the centre of the rear of the whole lot. There was also a butcher’s shop on the front line, opposite the store, and adjoining it, so as to render it impossible, without an accurate survey of the premises, for the parties to know where the line would pass through the lot. -

Now, under these circumstances, it seems obvious that, by the deed, the parties intended to divide the lot into two equal parts, by a straight line, running from the centre of the front, to the centre of the rear line of the whole lot. It was also-intended to convey to the defendant, the store, and the land on which it stands. It was a permanent building, then in the possession of the grantor, and to obtain it, was, probably, the principal object of the defendant, in making the purchase. The court charged the jury, that if the store was not a temporary building, but a building permanent in its character, the removal of which was not contemplated by the parties, the defendant was entitled to the north half of the land, according to ajine, to be drawn from the centre of the front to the centre of the rear, of the whole lot; and also, to all south of that line, which was covered by the store. We think this was a correct construction of the deed, as the property was situated. There is, as we have seen, a sufficient description of what was intended to be conveyed—the north half of the whole lot, together with the store. The store being a permanent building, not intended to be removed, the conveyance of it passed the land on which it stood, upon the familiar principle, that the grant of a house carries with it the garden and curtilage on which it stands. 2 Saund., 401, n. 2. And although the words, “ standing on said north half,” are superadded to the word store, yet as this was an erroneous description, added to one that was accurate and precise, they are words to which the maxim, falsa demonstralio non nocet, properly applies, and may therefore be rejected.

It was said, that a crooked, or zigzag line, was not intended by the parties, and it is probably true, that they supposed the store stood upon the north half of the lot, but, as the main object was to convey the store together with the lot, we think it correct to carry out this intention, as nearly as is practicable.

The charge gave the parties the straight line, as one of the controlling points, in the description; and gave effect also to the other obvious intention, of conveying the store. This was in conformity with the ease of Nichols v. Turney, 15 Conn. R., 101, which bears some analogy to this case.

The parties, to some extent, had occupied the land between the store and the river, promiscuously, each occasionally occupying over the line, on the land of his adjoining proprietor. This, at most, was very slight evidence of ouster, by the defendant; and, alone, would have been wholly insufficient to justify a verdict, finding an ouster. But the defendant had given the plaintiff a written notice, not to trespass on his part of the property, and, in it, he claimed to own all the land north of a line, running from a middle point in the front line of both lots, in a straight line, to the south-west corner of the store, and thence, in a direct continuous line to the river. The court submitted this, in connection with the other acts mentioned above, to the jury, to prove the ouster claimed, instructing them, that an ouster was an act, which was not constituted by mere words, but that the notice might serve to give a construction to such acts, as it was shown the defendant had committed, over the true line; and submitted it to the jury, to find, whether said notice, in connection with the acts proved, was sufficient evidence of ouster. We think this was the proper course, and consequently, there was no error, on either point, in the case.

Upon the plaintiff’s claim for a new trial, on the ground that the charge did not give him as much land as he was entitled to, under his deed, nothing need be said. As we think the charge correct, it follows that the claim could not be sustained.

In this opinion, the other judges, Waite and Storrs, concurred.

A new trial not to be granted.