author: Ellsworth, J. Storrs, J.,

text:
    Larkin vs. Avery and others.
    Where the relation of landlord and tenant exists, possession of the leased premises cannot be obtained, by force, against the will of the tenant, but the landlord must resort to his legal remedy, for that purpose.
    A tenant, having been removed, against his will, from certain leased premises, under a warrant, founded on the statute, relating to persons, suspected to have been exposed to the small-pox, the landlord, during his temporary absence, took possession of said premises, and after his return, which was as soon as practicable, kept him out by coercion. Held, that the tenant had not relinquished possession of said premises, and that the landlord had acquired no right forcibly to remove him therefrom.
    Although, by the express provisions of the English statute, 29 Car. II., a parol lease, for a period not exceeding three years, is valid, yet a parol executory lease, though for a shorter time than three years, is entirely void.
    Under our statute, a parol lease, whether for one year, or for a longer, or shorter period than one year, is void. Where, however, the lessee takes possession under a parol lease, he becomes a tenant at will; but, by implication, his estate is converted into a tenancy from year to year. But this rule is not to be so applied, as entirely to exclude from consideration, everything that was said by the landlord and tenant, at the time of the letting, as to the proper rent, or proper time for leaving the premises.
    The English rule, under which a tenant from year to year is entitled to six months’ notice to quit, before the landlord can bring ejectment against him, has been superseded by our statute, which gives to the lessor, after thirty days’ notice, a summary process, where the lessee holds over his term.

      Where, on the trial of a cause, the plaintiff objected to a deposition, which was offered, by the defendant, in evidence, and which, the magistrate certified, was taken because the deponent was going to sea, and it was agreed that the deponent did not go on the voyage contemplated, at the time the deposition was taken; and the parties were in controversy, as to the fact whether the deponent had since gone to sea, or was within the state, and the court refused to postpone the trial to enable the defendant to obtain further evidence on that point, and rejected such deposition ; it was held, that a new trial ought not, on that account, to be granted.
    This was an action of trespass for breaking, and entering certain apartments, used and occupied by the plaintiff as his dwelling-house, and forcibly ejecting, and removing him, and his family, and effects, therefrom.
    The cause was tried before the superior court for New London county, at the term holden in March, 1854. On the trial it was admitted that about the middle of September, 1851, the plaintiff' with his family entered into possession of the south half of the basement story of a dwelling-house belonging to the’ defendant, in the village of Mystic, in the town of Groton, and that the plaintiff and the defendant Avery had previously made a contract regarding said premises, under which the plaintiff had so entered.
    The plaintiff claimed that he hired the portion occupied by him, until the first of April, 1852, the rent being payable at the end of each month. The defendant claimed that the hiring was such that either party could terminate it at pleasure, the rent being payable, each month, in advance. The plaintiff continued in the undisturbed possession of said premises, until some time in the month of February,-1852. The defendant Avery, between the 15th and 20th of that month, ordered the plaintiff to quit the house, which the plaintiff refused to do. On the 23rd of February, 1852, the plaintiff, with his family and effects, was removed from said premises, under a precept, or warrant from the town authorities, to another dwelling in a secluded portion of said town, on account of an apprehension that the plaintiff might spread the infection of the small-pox. The plaintiff did not consent to leave said dwelling, but was forcibly removed under said order, taking with him the key of his room, opening into the passage, dividing the north from the south part of the said basement story; said passage way being entered by an outer door, used in common by the occupants of said basement story.
    The plaintiff remained, with his family, in the house, to which he was then taken, for the reasons aforesaid, until the 7th of March, 1852, when they, with some of their goods and effects, were brought back to the tenement first described, by the same officer who had removed them, it being supposed that all danger of spreading the small-pox was past. On attempting to unlock the door from the passage aforesaid into the portion "of said house which the plaintiff claimed, it was ascertained that said door was otherwise fastened than by the lock, and the plaintiff thereupon went to a window, through which he had previously been in the habit of entering said tenement, whenever his wife was absent and had locked the door, and raised said window; and then the plaintiff removed, with an axe, the fastening of said door, which was a strip of board, nailed across the same. His wife and child' then came in, and a portion of the furniture was also deposited in said room.
    Said Avery then appeared, and ordered the plaintiff to quit said house with his family, and also ordered the officer, who was aiding in bringing in the residue of their furniture, to desist from so doing, and to quit said premises.
    The plaintiff refused to go, and thereupon Avery, having procured the aid of the other defendants, forcibly removed the plaintiff, his family and effects, into the street. The defendant Avery claimed, and it was admitted, that after the plaintiff was removed as aforesaid, on the 23d of February, he took possession of said tenement, fastened the door thereof, and was in the occupation of the same, when the plaintiff so returned. The defendant asked the court to charge the jury, as matter of law, that said agreement, as to the letting of said tenement, having been by parol, was revocable; and having been revoked by said Avery, if the plaintiff was carried out of the occupation of the premises by said officer, under said authority, and then said Avery peaceably resumed such occupation and the plaintiff subsequently broke into the same with force, it was lawful for said. Avery to defend his possession, by putting the plaintiff out, at the time of such breaking, without unnecessary violence.
    The court charged the jury, that such a letting as was claimed by the plaintiff, would give him a right to occupy, and enjoy the premises until the first of April next, after taking possession of the same, for such a letting was not a mere license, but a lease, which the defendant Avery could not revoke after the plaintiff had taken possession of the premises; that if the letting was of such a character that either party could terminate it at pleasure, then if said Avery had at any time ordered the plaintiff to quit possession, he could not lawfully remain longer, arid said Avery might lawfully remove him, if he could do so, without a breach of the peace. That if the plaintiff had been removed from said premises, by the officer, forcibly and against his will, and with the intent to return, and said Avery took advantage of such removal to repossess himself of the premises, the plaintiff might reenter the same in the manner he did, and if he did so enter, and was in the peaceable possession of the same, then the defendant would have no right to eject him.
    The plaintiff, in connection with the evidence as to the return of the plaintiff to the aforesaid premises, on the 7th of March, 1852, read in evidence, an order from the health committee of the town of Groton, to one Orrin Chapman, to repair to the above described premises, and remove the plaintiff therefrom, for the purpose of aiding in identifying the time of the transaction. The defendants objected to the admission of said paper, but did not ask the court to pass on the question of its admissibility. No claim was made that said paper affected, in any manner, the rights of either party, and the court took no notice of the paper in the charge to the jury.
    The defendants offered in evidence the deposition of Manuel Garcie, taken on the 11th day of March, 1854, because the deponent was about to go to sea, as was certified by the magistrate. The deponent did not go on the voyage on which it was claimed that he expected to go, but remained at home after the ship sailed. I1 he defendants claimed that he had since gone to sea, and the plaintiff claimed that he was still at home, and within twenty miles of the court. The defendants then proposed to learn, by telegraph, what the fact was, but the court decided that the deposition was inadmissible, inasmuch as it was taken, only in reference to the expected absence of the witness, on the first voyage, and .such was the certificate of the magistrate.
    The court, on objection, ruled out the deposition and it was not read to the jury.
    The jury rendered a verdict for the plaintiff, and the defendants moved for a new trial.

      Pomeroy and Me Owrdy, in support of the motion, contended,
    1. That the charge of the. court was erroneous. A parol lease comes within the statute of frauds. 1 Sw. Dig., 255. 3 Day, 468.
    The statute requiring a lease, for more than a year, to be executed as a deed, does not repeal the statute requiring a lease for a shorter time to be in writing. There is no inconsistency between them. Benedict v. Benedict, 5 Day, 464. 1 Sw. Dig., 253.
    The English statute expressly excepts leases for three years. If there is an inference from this statute that a parol lease is good for three months, there is a similar inference, that, as against the lessors, it is good for three years.
    The statute, respecting summary process, has no bearing on the subject. If there is an inference from this statute that a parol lease is good for three months, there is the same inference that it is good for three years.
    Part execution of a parol lease does not take it out of the statute at law. Eaton v. Whitaker, 18 Conn. R., 222. 1 Met., 483.
    2. That the deposition was admissible. A deposition is taken because a man expects to go to London, but he goes to Liverpool; is it therefore inadmissible? Gold v. Eddy, 1 Mass., 1. 7 Shepley, 257. Avery v. Woodruff, 1 Root, 76. Pettibone v. Deringer, 4 Wash. C. C., 215.

      Foster, contra, contended,
    1. That the instruction of the court to the jury, that if the contract of letting and hiring the premises was such, as was claimed by the plaintiff, it wras not a license merely, revocable by the defendants, but was irrevocable after the plaintiff had taken possession, was unquestionably correct.
    2. That the defendant could not except to the charge of the court, that if the contract of letting and hiring was such that either party could terminate it at pleasure, yet if the defendant had ordered the plaintiff to quit possession, he could not lawfully remain longer, and the defendant could lawfully remove him, provided he did so without a breach of the peace.
    3. That as to the further charge of the court, that if the plaintiff had been removed from the premises forcibly, and against his will, by the officer, and with the intent to rethrn; and the defendant took advantage of the’ removal to repossess himself of the premises, the plaintiff might reenter the same, in the manner he did, and if he did so enter, and was in the peaceable possession of the same, then the defendants had no right to eject him; the same was undeniably good law.
    4. That the decision of the court, as to the deposition, being a matter of discretion, was not subject to revision, by motion for new trial; but if it were, the ruling of the court is unexceptionable.
   Ellsworth, J.

One question, made in this case, is, (whether the plaintiff, being removed from the defendant’s house, under a warrant, as stated, can be held to have relinquished his possession; and whether the defendant was i restored thereto, by his taking possession, so that he and not l the plaintiff was in possession at the time of the trespass.

We have no doubt, that in contemplation of law, the (plaintiff retained his possession as before, and the defendant acquired no right, by his entry while the plaintiff was kept out, by coercion. His absence was temporary and brief, (without design or consent, and with no purpose of giving up any rights he had acquired as a tenant, but of returning to the same, as soon as practicable and the law would permit., This absence does not materially differ from an absence (with one’s family at church or on a journey. We must therefore hold that when the plaintiff returned with his family and his goods and reentered his house, he was in possession in the same manner as if he had not been I removed ; and that there was a forcible entry and detainer, l by the defendant.

This being so, the question arises, are the defendants liable in trespass, either qaare clausam or vi et armis for the assault, (for both are included in the declaration, though no more force was used, than was necessary to remove the plaintiff.) Sampson v. Henry, 13 Pick., 36. Holly v. Brown, 14 Conn. R., 255.

The plaintiff’s possession was, at first, with Avery’s consent, as his tenant, whether it be held to be a tenancy at will, or a tenancy for some definite period, and it continued, in fact, as commenced, up to the time when he was put out of possession. The question, then, is, could he be thus removed ? could his possession, such as it was, be put an end to without some process of law? We think it could not. True, the defendant gave the plaintiff notice to leave the house; but the question is, what is the effect of the notice ? How may this possession, in fact, be put an end to ? If the lease was void, because of the statute of frauds, being in parol, and was, as the defendant insists, at no time, more than a license to occupy; a license revocable at the pleasure of the landlord, still, as there was an admitted tenancy until the license was revoked, we do not admit that after the revocation, the tenant could be forcibly ejected. We have no occasion to decide, whether at the common law a landlord would have a right, so far as damages are concerned, to reenter and turn out the man who was his tenant; or that the landlord could not plead liberum tenementum to an action of trespass for the entry. This is, I suppose, the law of England, and of some of these adjoining states. Sampson v. Henry, 13 Pick., 36. Meador and wife v. Stone, 7 Met., 150. Newton and wife v. Harland, 39 E. C. L., 581. Hyatt v. Wood, 4 Johns., 50, 53.

The exigency of this case does not require us to go further than to hold that a possession, commenced under a tenancy, cannot be put an end to in fact, by forcibly removing the tenant, without process. In England, although a plea of title is a good plea to trespass for entering, such plea has been decided to be insufficient to an action for the assault, in removing the tenant. It was so held in Newton and wife v. Harland, 39 E. C. L., 581. It was there held, if the acts of the landlord in taking possession, constituted a forcible entry, and the tenant was forcibly removed, he could recover for the assault. The same was held in the case of Sampson v. Henry, 13 Pick., 36, where this exact distinction is dwelt upon, as most important.

We have no occasion to go beyond what is maintained in the cases cited, and yet, we think, our courts have, in fact, gone further. In Bliss v. Bange, 6 Conn. R., 78, where there had been a forcible entry by the landlord, and a subsequent restitution, under process of law, it was decided that the plea of liberum tenementum was not a good plea. The court said if the plea was held sufficient, it would at once repeal the statute which gives treble damages for a forcible entry. They went on the ground, doubtless, that by our statute, if not by our common law, such an entry was illegal and criminal. The action, it is true, was brought on the statute and not at common law, and this perhaps may vary the question, though we are not confident that it does. We think, an assault, in such case, must be held unwarrantable and illegal. In England, such an entry is criminal and indictable, for by the statute of 5 Rich. II., it is enacted, “ that none, from henceforth, may enter into any lands and tenements, but in case where entry is given by the law, and in such case, not with strong hand, nor with multitude of people, but only in a peaceable and easy manner.” Erskine, J., in giving his opinion in 39 E. C. L., before cited, says, and the remark is in harmony with the other opinions : It is true that the punishment of fine and imprisonment is expressly added, as the statutable consequence of a violation of this prohibition. Yet, inasmuch as the act is directly prohibited, the act itself is made unlawful, even if it were not' already so at common law, and it seems therefore, to me, to follow, that a landlord under the circumstances of this case, though he has a right of entry, must in order to reinvest himself with the lawful possession of the premises, held over by his tenant, exercise his right of entry peaceably, and that he cannot found a legal right to remove the tenant, upon the illegal act of a forcible possession.”

A question has been raised, as to the character of a parol letting, which does not exceed one year, or as in this case, is claimed by the plaintiff, from the middle of September, 1851, to April, 1852. The plaintiff claims that this lease is good and effectual until that time ; the defendant denies it, and insists that it is void, and of no effect, because it is in parol, and is a mere license revocable at any time, and that it had been revoked a reasonable time before the plaintiff was put out of possession, and, therefore, the defendant had a right to enter.

The court instructed the jury in favor of the plaintiff’s claim, that the letting for a definite time, is not a mere license, but is a valid letting, which gives the plaintiff a right to remain until that lease expires, although it was in parol.

We think the instruction in this case, is correct, not because we hold that a parol lease, for any time, is good and effectual, as a lease; our statute is too clear and positive to admit of any such construction, since it makes every contract, of such a nature, incapable of being enforced, whether it be for more or less than a year. The statute lends not the least countenance to the idea sometimes expressed, that a parol lease for one year is good. This is more obvious, if possible, when we consider that the first section of our statute of frauds, which avoids all contracts for all interests in leases, if not in writing, was passed in 1771, and the statute respecting leases, (the fourteenth section of the act concerning lands,) which is supposed to sanction a parol lease, not exceeding a year, was hot passed until 1788. This last section provides for recording leases, and declares that no lease, for more than one year, shall be good and effectual in law, against any other person, or persons, than the lessor, or lessors, and their heirs, unless such lease be in writing, subscribed by the lessor, attested by two witnesses, acknowledged before some authority, empowered to take the acknowledgment of deeds of land, and recorded at length, &c. The statute only adds to the requirements of the statute of 1771, instead of repealing or qualifying them, by implication. The English statute of frauds contains a section which differs from our own, in excepting from its operation parol leases, not exceeding three years; hence, in England, such a lease is as good now, as before the statute of frauds, when no leases needed to be in writing. But even there, if the lease is not actually commenced by the entry of the tenant, it is held to be only a contract for an interest in, or concerning lands, and is void by the fourth clause of the fourth section of their law. In Chit. Con., 319, 320, it is said: “Although the second section of the act of 29 Charles II., renders valid a parol lease, for less than three years from the making, yet, until entry by the lessee, there is a mere interesse termini, and if he refuse to take possession upon such verbal letting, no action lies to recover damages for not occupying, or becoming tenant, nor can an action for use or occupation be maintained against the lessee; ” the fourth clause applies to such a parol lease, not rendered effectual by entry; for it provides “ that no action shall be brought whereby to charge the defendant upon any contract or sale of lands, or any interest in, or concerning them,” like our statute, and hence it has ever been held here, as well as in England, that a mere executory parol lease is void and ineffectual, in behalf of either party, showing that our statute of 1788, which requires leases to be in writing and recorded, should not be construed to uphold any executory parol lease whatever. In Wood-fall’s Landlord and Tenant, p. 1223, it is said, that in leases for years, or other chattel interests, livery of seisin is not necessary, but instead thereof, an actual entry is requisite, to vest the estate in the lessee, for, to many purposes, he is not tenant for years until he enters; and Blackstone says, “ Nor, indeed, does the bare lease vest any estate in the lessee, but only gives him a right of entry on the tenement, which right is called his interest in the term, or interesse termini, but when he has so entered and thereby accepted the grant, the estate is then, and not before, vested in him, and he is possessed.” Bl. Com., 147 The same is stated, with great distinctness, on page 319. This distinction is of no further importance here, than to show that a bare parol lease, for a year, is not good and effectual in England, and for the same reason is not good here, both countries having the same statute as to this particular point. We have already said that, in England, if there is an entry by the lessee, the parol letting becomes a technical lease, and is good and effectual, if it does not exceed three years.

But, if all parol leases are void in Connecticut, and taking possession is of no avail, at law, it is asked, how does the lease in question justify the charge of the court, that the plaintiff might keep possession until April ?

As we have said, parol leases in England, exceeding three years, are void in all their provisions and stipulations, and no part of them can be sustained as leases; yet, inasmuch as there is, avowedly, a tenancy of some duration, the English statute provides that such leases shall have the force and effect of leases, and estates at will only. In England, as far back as Henry VIII., in the case of estates at will, where there is a general letting, some relation of landlord and tenant, the courts have held by judicial construction, or have established it as a rule of law, founded in general convenience and sound policy, that estates at will shall be estates from year to year, in order to avoid the effects of a sudden and unreasonable determination of the tenancy, and of deciding, in each case, what would be a reasonable time for the tenant to remove. Doe v. Bell, 5 Term., 471. Clayton v. Blakey, 8 Term., 3. 1 Cru. Dig., 284. Schuyler v. Leggett, 2 Cow., 663. People v. Rickett, 8 Cow., 231.

Some judges have thought, that the English courts go too far, in deciding that where the statute declares such estates shall be estates at will, they may be constructively transformed into estates from year to year; and in Ellis v. Page, 1 Pick., 43, the court of Massachusetts absolutely rejected this construction of their statute, which, in its provisions, is similar to the English, and held that; where the statute declares these estates shall be estates at will, they shall not be estates from year to year; and accordingly, they held that the tenant at will was not entitled to notice to quit, in conformity to the common law, (as they said,) though he was to be allowed a reasonable time for removing his family and property. Judges Jackson and Putnam dissented from this opinion, and insisted, that, as this clause of their statute was taken from the English statute, its construction and application should be taken, and adopted with it. Their opinions are given at length in a note to the case of Coffin v. Lunt, 2 Pick., 70.

The question whether a tenant at will is entitled to notice, and if so, what notice, has been much discussed in the courts of this country, as the books will show; but, as we have no occasion to examine the point, we will not pursue this topic any further; for, be that as it may, we have no statute in Connecticut, and must treat the estate, acquired under a void lease, as a general estate at will, as held in England. Both parties agree that there is a tenancy here of some kind, and notan adverse holding; not a disseisin; not an estate at sufferance; not a valid lease for a definite time; and if we concede to the defendant what he asks, we get a tenancy, on which rent accrued, and one which must be held lió have some character and duration. We hold it to be an estate at will; a tenancy which is derived from a general letting or general relation of landlord and tenant, and then we apply to such an estate, the well settled rule of law, that such an estate is from year to year—the rule which existed long before our ancestors came to this country, and which they brought with them, and incorporated into our jurisprudence, as founded in justice and sound policy—easy of application, certain and definite, and better for all parties than any other general rule which could be adopted. It was first applied to leases of cultivated lands, but for centuries it has been applied to houses and buildings generally, except the letting of rooms. An estate from year to year, by legal implication, is believed to be perfectly familiar to the judges and gentlemen of the bar, in Connecticut. Bacon v. Brown, 9 Conn. R., 334. Lockwood et al. v. Lockwood et al., 22 Conn. R., 425. Strong v. Crosby et al., 21 Conn. R., 398. King v. Woodruff & Beach, ante 56. 1 Sw. Dig., 36 and 94. This rule, however, is not to be applied so as entirely to exclude from consideration everything that was said, or agreed by the landlord and tenant, at the time of letting; for although no action can be brought upon any such executory contract, that which was said may be regarded, in fixing a proper rent, or a proper time for leaving the premises. This has been repeatedly decided in the English courts, and elsewhere ; we particularly refer to Doe v. Bell, 5 Term., 471. Schuyler v. Leggett, 2 Cow., 663. People v. Rickert, 8 Cow., 230. In Doe v. Bell, which was a parol lease for seven years, Lord Kenyon said: “ Though the agreement be void by the statute of frauds, as to the duration of the lease, it must regulate the terms, on which the tenancy subsists, in other respects, as to rent, the time of year when the tenant is to quit, &c. So in 1 Cru. Dig., 284, and in many other books, this principle is repeated and approved, as good law, and fully established. In Richardson v. Gifford, 1 Adol. & El., 55, the doctrine would seem to be carried much further. The case was a parol lease, and void, being for more than three years. But there was an agreement that the tenant should make repairs; in an action against him for not repairing, he was held liable .to pay for breach of contract. Beale v. Sanders, 32 E. C. L. R., 357.

It is said, that if we adopt that part of the English rule, making estates at will, estates from year to year, we must adopt the whole rule, and hold that six months’ notice is necessary, but this is not so ; our statute gives the landlord, in every case of holding over, a right, and the remedy, to regain possession in thirty days. This statute has ever been held in Connecticut, to do away with the English rule of six months’ notice. 1 Sw. Dig., 95, Dut. ed.

Nothing more need be added, to vindicate the first part of the charge of the court. The second part is in the defendant’s favor, and therefore he cannot complain. The third part has been commented upon, in the early part of this opinion, and shown, as we trust, to be unobjectionable and correct.

In the progress of the trial, the plaintiff, in connection with other evidence, introduced the order to Orin Chapman, to remove the plaintiff and his family, back to the place from which they were taken. It was offered only to identify time, for which it was clearly admissible, and went to the jury without any other claim. This was correct.

Another question is made upon the rejection of the deposition of Manuel Garcie. We think this point was for the judge’s discretion, and cannot be reviewed. It appears, that upon the deposition being offered, a question arose, whether the deponent had left the state. The defendant insisted that he had, although he admitted that he did not go as was expected, but went immediately afterwards; the plaintiff insisted that he was still at home and offered evidence to that effect. Undoubtedly, the certificate of the justice, who took the deposition, was prima facie evidence that the deponent was going to sea, but it being proved or agreed before the court, that he did not go, the parties were in controversy, as to the mere fact whether he had gone or not, and the defendant wished for time to get more evidence. The judge did not feel bound, on this account, to postpone the trial, and we cannot say that he did not decide correctly. The defendant was bound to have his proof in court, and if he had done this, and by it, could have satisfied the court, that the defendant was absent, at the time of trial, the deposition would undoubtedly have been received. The motion, it is true, is so drawn, as to make the judge seem to say, that the deposition was rejected, because the specific absence in contemplation, when the deposition was taken, did not happen, though the deponent went immediately after. We do not believe that the judge intended so to rule, or ought to be so understood. He decided, as he clearly might do, that the trial should not be suspended to get more proof; and'if an improper reason was given for the ruling, in the haste of the trial, or has got into the motion, as a part of the case, we do not, for such reasons, feel called upon to grant a new trial when the decision itself was right and proper.

We do not advise a new trial.

In this opinion Church, C. J., and Waite, J., concurred. Hinman, J., having tried the cause in the court below, was disqualified.

Storrs, J.,

concurred in the result, on the ground that the plaintiff is to be deemed to have been in the actual and peaceable possession of the premises, at the time of the trespass complained of; that the entry of the principal defendant, Avery, being forcible, was by force of our statute of forcible entry and detainer, unlawful, and therefore a trespass, as to the plaintiff; that it did not displace such possession of the plaintiff; that the possession ^claimed to have been obtained by said defendant, by means of his entry, was not a peaceable one; and that he, and the other defendants assisting him, had no right to maintain it against the plaintiff, or to expel him from the premises by force.

New trial not to be granted.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Lord vs. Sill.
    In April, 1851, H, being the owner in fee of a tract of land, a part of which was incumbered by a mortgage to Yale College, mortgaged the whole of said tract to S, by a deed which was subsequently ascertained to be void'as to his creditors. In April, 1852, he mortgaged the same land to W, and in November, 1852, the plaintiff caused an execution, issued upon a judgment in his favor, to be levied upon the equity of redemption in said premises, and subject to all said mortgages. The equity of redemption was of less value than the amount of such judgment, and it did not appear that, at the time of such levy, the plaintiff had any knowledge, or means of knowing, whether the defendant’s mortgage was, or was not, valid. The plaintiff claiming a right to redeem said premises on paying to S, the amount due on said mortgage to W, tendered to him said amount, and also a deed of assignment of the defendant’s interest in said premises, -which the latter refused to execute, and thereupon the plaintiff brought his bill in equity against S, for a conveyance of said premises. Held, 1. That the levy of the plaintiff’s execution was not void, on the ground that it was made subject to said mortgage to S. 2. That, although the mortgage to S. was void, as to the creditors of H. who so treated it, it was good against the plaintiff’s title acquired by the levy aforesaid. 3. That the plaintiff, as the holder of the mortgage to W, had a right to redeem the mortgage to Yale College, unless the defendant should elect to redeem said mortgage to W, which he had a right to do, by virtue of the mortgage from H. to him, and that.the plaintiff, as the owner of the equity of redemption, had a right to redeem the mortgage to the defendants and the mortgage to Yale College.
    This was a bill in chancery, brought by Lynde Lord, against Thomas Sill, to redeem certain mortgaged premises, and to obtain a conveyance of the defendant’s interest therein.
    To this bill, the defendant filed an answer, at the term of the superior court holden in December, 1853, when a committee was appointed, whose report, which was substantially as follows, embraced the facts material to the present case.
    . On.theT3th day of November, 1852, John Hart was the owner, in fee, of the tract of land, described in the plaintiff’s bill, subject to the following mortgages, executed by said Hart, viz., a mortgage of a part of said premises to the president and fellows of Yale College, dated April 12th, 1848, given by said Hart to secure his bond for two thousand dollars; a mortgage of the whole of said premises to Wyllis Warner, dated March 11th, 1851, given to secure two notes of said Hart, described in the condition of said mortgage to said Warner, one of which was for the sum of five hundred dollars, and the other for three hundred and sixteen dollars; also second mortgage to said Warner, dated April 2d, 1852, said notes having been, by mistake, incorrectly described in said first mortgage.
    On the 11th of November; 1851, prior to the execution of said second mortgage to said Warner, Hart mortgaged said premises to the defendant Sill, to secure Hart’s note to him, of that date, payable, on demand, with interest, for one thousand dollars.
    At the time of the execution of said mortgage deed and note to the defendant, in November, 1851, there was a balance of sixty dollars due said Sill, from said Hart, upon a store account, for sundries; and interest on the items of said account on said Sill’s books, would have added considerably to the amount thereof, said account in November, 1851, being of from nine to sixteen years’ standing.
    In September, 1852, the plaintiff recovered judgment against said Hart, for the sum of $636.63, upon which judgment was rendered, ahd thereupon an execution was issued, which the plaintiff caused to be levied upon said Hart’s equity of redemption in said premises, subject to the mortgages to the president and fellows of Yale College, to the mortgage to Warner, and also, to the aforesaid mortgage to the defendant; it being stated in the return of the officer, upon said execution, that the value of the whole premises was $-; that the amount due upon the defendant’s mortgage, at the time of said levy, was one thousand and sixty dollars; that the value of the equity of redemption, subject to all said mortgages, was fifty dollars. Said execution was duly returned, and recorded in the land records of the town where said land was situated.
    On the 18th day of January, A. D., 1853, the plaintiff paid to said Warner, the amount then due to him on said notes, mentioned in said Hart’s second deed to him aforesaid, and thereupon said Warner assigned to the plaintiff the said notes, and by a proper deed, conveyed to the plaintiff', all his right, title, and interest in said premises, acquired by the mortgage deeds to said Warner, and on or about the 19th day of January, A. D. 1853, the defendant paid to said president and fellows of Yale College, the amount then due, on the aforesaid bond, and the said president and fellows thereupon assigned to the defendant their mortgage, with the debt due on the bond secured thereby.
    On the 23d day of February, 1853, the plaintiff made a legal tender to the defendant, of one thousand eight hundred and ninety dollars, which was the amount then due on said bond, assigned to said Sill as aforesaid, and also, at the same time, tendered to him a deed of assignment of said college mortgage, to the plaintiff, drawn in proper form, and requested the defendant to accept said amount, so due on said bond, and to execute such deed of assignment, but said Sill refused to accept said tender, and to execute said deed of assignment, unless the plaintiff would also pay to said Sill, the amount of said Sill’s debt from said Hart, secured as aforesaid by said mortgage; but was willing, and offered to take any money, which the plaintiff might pay to him, and was willing, and offered to make such an assignment as aforesaid, if the plaintiff would uay to the said Sill, the amount of the said Sill’s debt from said Hart, which the plaintiff refused. There was no evidence, however, before the committee, that said Sill, at the time of said tender, claimed any less than the whole of said mortgage note of $1,000 as due to him.
    The case, embracing the foregoing facts, was reserved for the advice of this court.

      Foster and Chadwick, for the plaintiff, contended,
    1. That the plaintiff was entitled to redeem the premises in question, on paying to the defendant, the amount of the first mortgage. The levy of the execution in question, or the equity of redemption, subject to all the mortgages, including that of Sill, vested in the plaintiff, all Hart’s right and interest in the premises, and therefore all the rights of a creditor of Hart, and among others, the right of contesting fraudulent conveyances, which the debtor, whose interest he takes, would be estopped from contesting. It also vested in him the right to dispute the fraudulent mortgage, which Hart cannot exercise, but which his creditor, who takes his interest by operation of law, may do.
    2. That the plaintiff is not estopped from denying the validity of a mortgage, which is fraudulent as against Hart’s creditors, because that mortgage has been acknowledged, by the officer, in his return, and its value deducted by the appraisers, in estimating said equity. Sw. Dig., 622. 34 E. C. L., 140.
    3. That the principle is recognized in various decisions in our own state, that, where land has been setoff on execution, by mistake, to a creditor, of greater value than the amount of the execution, the levy is not void, but that, by a bill in chancery, the execution creditor may be compelled to pay over the surplus so received, above the amount of his execution. Fitch v. Ayer, 2 Conn. R., 143. Huntington v. Winchell, 8 Conn. R., 45. Spencer v. Champion, 9 Conn. R., 536. Hathaway v. Hemingway, 20 Conn. R., 191. It cannot ordinarily be known whether a supposed fraudulent mortgage is so, or not, and if, after a long time, it appears that the mortgage would probably be sustained, the unpaid balance of the execution can be collected out of the property of the debtor, without any litigation; but if a levy is made in accordance with the claim of the defendant, and it should appear that the mortgage, supposed to be fraudulent, is valid, then, in order to collect the balance of the execution, the creditor must contest the validity of such mortgage, and ascertain the fact. Cowles v. Bacon, 21 Conn. R., 451. The mode, pursued by the plaintiff, dispenses with all needless litigation; works no injury to the rights of any one; is in accordance with established principles, in analogous cases in our own state, and conflicts with no principle of law whatever.

      McCurdy, contra, contended,
    1. That the plaintiff, having taken the land, expressly under the incumbrance of the Sill mortgage, cannot now hold it, free from that claim, so as to obtain $1,050 for $50, and $900 more than his debt; there being no pretence of any mistake. Russell v. Dudley, 3 Met., 147. Morris v. Floyd, 5 Barb. Sup. Ct., 130.
    2. That the finding is not warranted by the allegations of the petition. 2 Sw. Dig., 225, 227. 7 Conn. R., 497 and 343. 2 Conn. R., 161. 3 Sand., Ch. Rep., 564, U. S. Dig., 1848, 277. 5 Day, 230.
    3. That the sum of $200 having been found due to Sill, and nothing having been tendered for it, there can be no decree in favor of the plaintiff. 2 Cush., 32.
   Hinman, J.

The plaintiff’s bill takes no notice of the mortgage to the defendant, of November 11th, 1851; and as there is no replication to the defendant’s answer, in which that mortgage, with other facts, is set out, and title claimed under it, the proceedings are, in this respect, informal,—the parties, however, went to trial before' the committee, as if there had been a denial of all the facts set out by the plaintiff in his bill, and also a denial, by the plaintiff, of all the new matter, alleged by the defendant in his answer, and the committee have made a full report in regard to all the matters alleged by either party ; we shall treat the informality, therefore, as waived, and proceed to determine the respective rights of the parties, upon the facts found in the report of the committee.

The plaintiff has the whole equity of redemption, by virtue of the levy of his execution; and has, of course, a right to redeem all prior incumbrances. He, however, levied his execution on the equity of redemption, as subject, not only to the mortgages to the college, and to Mr. Warner, but also as subject to the mortgage to the defendant, on which he says in his levy, there was due, at the time he set it off, the sum of one thousand and sixty dollars. But the facts, found by the committee, show that the defendant’s mortgage was given under such circumstances, that creditors have a right to treat it as fraudulent and void, and the plaintiff now claims the right to redeem the other mortgages, and to hold the land, without paying the amount which appears to be due on this. If he was permitted to do this, under the title acquired by the levy of his execution, it is obvious that he would, in this way, acquire a title to real estate, valued at more than a thousand dollars, without making any compensation for it whatever. The plaintiff’s argument is, that, as that was a fraudulent mortgage, the defendant cannot set it up as against the plaintiff, a creditor of Hart, under whom they both claim. We think it a sufficient answer to this, to say, that the defendant does not set up his fraudulent mortgage, but the plaintiff set it up, and affirmed it, by levying his execution, expressly subject to it; and the defendant may well say to him, you have not taken, or attempted to take, the land represented by that mortgage, and therefore have no equitable claim to it, and you must be willing to do what is equitable, at the time when you are asking for equitable relief.

It was suggested, by the defendant’s counsel, that the levy was void, on the ground that the whole equity of redemption was not taken, or enough of it to satisfy the plaintiff’s execution. This is not so. The plaintiff found the land incumbered by the defendant’s fraudulent mortgage. It does not appear that he had any means of determining whether it was a valid or invalid incumbrance; and, if he had any suspicion on the subject, we think the defendant cannot complain, because the plaintiff chose to treat him as an honest man, in taking his mortgage of Mr. Hart. On the contrary, it would seem, that the plaintiff, if he was misled by finding such an incumbrance upon the property, and levied his execution subject to it, supposing it to be a valid incumbrance, has still the right, by a proper application to the court, to correct the levy of his execution, and to take the property as if there was no such incumbrance upon it. That point, however, does not arise in the case.

The plaintiff, since the levy of his execution, has paid and taken an assignment of the Warner mortgage, and the defendant has paid and taken an assignment of the mortgage to the college; and as the defendant also holds his one thousand dollar mortgage from Hart, and the plaintiff the final equity of redemption, by virtue of the levy of his execution, the question arises, in what order, respectively, the parties have a right to redeem, or are bound to redeem.

The mortgage to the college was prior in point of time, and, being valid, in every respect, against all persons, must be first paid.

The mortgage to Mr. Sill, the defendant, being next in point of time, and, though void against creditors, who choose to treat it as fraudulent, yet good, in respect to all other persons, and, as we have seen, good in respect to the plaintiff’s title, acquired by the levy of his execution, must be next paid, if the plaintiff only claims to redeem by virtue of the title acquired by such levy. But the plaintiff now holds the mortgage to Mr. Warner, which, though subsequent to the defendant’s mortgage, is, nevertheless, to be preferred to that mortgage, on the ground that, as a mortgagee, by a valid mortgage, he is also a bona fide creditor of Hart, and so can hold against the claim under the fraudulent mortgage: as against the defendant’s fraudulent mortgage, therefore, the plaintiff’s title, by virtue of the Warner mortgage, is second in point of time, and is to be redeemed next to the college mortgage, and, of course, as second mortgagee, the plaintiff has a right to redeem the college mortgage, without redeeming the mortgage to the defendant. But none of the mortgagees have a right to anything, but the money due them on the respective claims, and as Mr. Hart, the original mortgagor, would have the right to redeem any of the mortgages, so any grantee, or mortgagee of his, whether the grant or mortgage was founded on any consideration or not, has a right to redeem any of the prior mortgages. The effect, therefore, is to postpone the defendant’s mortgage to any bona fide incumbrance not expressly made subject to it, and, therefore, it is postponed to the Warner mortgage; and the decree of the court should be so modified as to permit the plaintiff, as the holder of the Warner mortgage, to redeem the college mortgage, unless the defendant, as the holder of his mortgage of the eleventh day of November, 1851, shall elect to redeem the Warner mortgage, held by the plaintiff, and if he so elects to pay, and redeem the Warner mortgage, he is to be permitted to do so, unless the plaintiff, as the owner of the ultimate equity of redemption, shall elect to redeem, by paying both the defendant’s individual mortgage, and also the mortgage which he holds, by assignment from the college.

In this opinion the other judges concurred, except Waite, J., who was absent when the case was argued.

Decree accordingly.


author:
Ellsworth, J.
     Waite, J.

text:
    Lord and another vs. Lord and others.
    Where a clear and manifest intention can be deduced from the provisions of a will, that a legacy to the testator’s wife was intended by him to be in lieu of dower, it will be so regarded, and in case of a deficiency of assets, such legacy does not abate rateably with other legacies, for the payment of the testator’s debts.
    A testator, whose estate was inventoried at about twenty-two thousand dollars, nearly one-half of which was hank stock, after stating substantially in the prefatory part of his will, that he -was desirous of disposing of his estate, made provision for the payment of his debts, which proved to be insufficient for that purpose. He then gave his wife during her widowhood the use of his dwelling-house, garden and lot adjoining, one-half the rent of his fishery and the use of one-half of his household furniture, the income of fifty-seven shares of bank stock, and charged upon his home farm the annual payment to her of certain products of such farm, and also gave her absolutely twenty shares of said bank stock. Held, that the provision so made for the testator’s wife was in lieu of dower, and that the bank stock bequeathed to her was not to abato proportionally with other legacies for the payment of his debts.

      The claims, of the parties in the above entitled cause, as to the manner in which the personal estate of William M. Lord, deceased, should contribute to the payment of such debts as were not provided for by the property specifically appropriated for that purpose, having been reserved by this court, (see 22 Conn. R., 595,) for further argument, that question was argued at the term of this court, holden at Norwich, in July, 1854.
    The prefatory clause of said will was as follows:
    • “In the name of God, Amen, I,'William M. Lord, of Lyme, in the county of New London, and state of Connecticut, knowing that death is an event certain to occur to all, yet that it is known to him who controls all events when I may be called hence, and having been through his divine providence, preserved to this hour, in the possession of good health of body and of sound disposing, meaning and understanding, I am desirous of disposing of the estate which he has intrusted to my stewardship in such manner as shall in my judgment, be best calculated to prevent controversy and promote concord and happiness among those of my relations and my friends, who may survive me, and who may have claims upon my regard and affections. I do therefore make and ordain this my last will and testament.”
    The other material facts are sufficiently stated in the report of the case above referred to.
    Ingham, for Nancy Lord, contended,
    1. That the provision made by the testator, in his will, for his wife, was intended by him to be in lieu of dower in his estate, and was so accepted by her. She takes therefore by purchase, an absolute estate, for which she pays an equivalent, by the surrender of her right to dower.
    If the equivalent were very excessive in amount, the transaction, to the extent of the excess, might be fraudulent, and void as to creditors. 1 Sw. Dig., 89. 1 Rop. on Leg., 297. 6 Met., 44. 6 Gill., 120. Blower v. Morret, 2 Ves. Sen., 420. Williamson v. Williamson, 6 Paige, 298. Sanford v. Jackson, 10 Paige, 266. Stuart v. Carson, 1 Des., 500. Merritt v. Emery, 10 Pick., 507. Isenhart v. Brown, 1 Ed. Ch., 411. 4 Kent Com., 56.
    2. That the intention of the testator is clear from the will itself. Any other construction would be wholly inconsistent with the other provisions in the will, and would defeat the manifest intent of the testator. The widow has accepted the provision in the will, in lieu of dower, and is barred of dower. Stat. 1849, p. 277. 10 Pick, 507. She has taken possession, as far as she was able, under the will, of the property bequeathed to her, and has always regarded and treated it, as an equivalent for her dower. She could not now claim dower, if she would.
    3. That it is not necessary that the disposition in the will should be expressed to be in lieu of dower; it is settled that such intention may be inferred or implied like any other fact. 1 Sw. Dig., 89. Stark v. Hunnton, Saxton, 216. Davidson v. Davidson, 3 Green. Ch. R., 235, 237. Addison. p. 350. Hamilton v. Buckwalter, 2 Yeates, 389. O’Brien v. Elliott, 15 Maine, 125. Tilley v. Folger, 14 Ohio, 610. Hubert v. Wren, 7 Cranch, 370. Adsit v. Adsit, 2 Johns., Ch., 448. Kennedy v. Nedron, 1 Dall., 415. Jackson v. Churchill, 7 Cow., 287. Perkins v. Little, 1 Greenl. R., 150. 4 Kent Com., 56, 59, 1. Eq. Dig., tit. Devise.
    4. That the claim that the legacy, in lieu of dower, does not extend beyond the simple value of the dower itself, and that, consequently, all beyond that, is liable for debts, in a case between the widow and creditors, might be regarded; but, in a case between the widow and heirs, or legatees, it is unsupported by either reason, or authority. All the property given is upon the same consideration, and for the same purpose. All is accepted in lieu of dower; not part of it.

      Me Cu/rdy and Chadwick, for Wm. M. Lord, contended,

      1. That the real estate, specially ■ devised, is exempt from abatement. Brainard v. Cowdrey, 16 Conn. R., 1.

      2. That the specific legacies must abate proportionally. The legacy to a widow is exempt, only where given in lieu of dower, by express terms, or a necessary implication. 1 Ed. Ch. Cas., 411. Isenhart v. Brown, and the cases therein cited. 2 Mr. Ex., 978. Blowers v. Merrit, 2 Ves. Sen., 420. 1 Rop. Leg., 365. Jest v. Brown, 3 Call., 11. Eq. Dig. Abate. Leg., 218. Here, nothing shows such an intention. The full amount, or value of the dower, is given out of the real estate. There can be no presumption that the legacy is given in lieu of dower, and to make up for that which is already satisfied. The legacy is not in lieu of, but in addition to, the provision for dower.
    2d. The widow’s legacy is not exempt from abatement, unless there is an inchoate right of dower, during the husband’s life. Perrine v. Perrine, 1 Halsted, 133. In this state there is no such right. Stat., 277.
   Ellsworth, J.

When this case was before us, last year, we left the point now in dispute, for a more full and thorough argument. That argument we have now heard, and we are now ready to declare that the law in fact is what we then intimated it might be.

All the books agree, that a devise or legacy given to the widow in lieu of dower, is not to be required to contribute with other legacies, to the payment of debts due from the estate. Hubbard & al. v. Hubbard & al., 6 Met., 50. Williamson v. Williamson, 6 Paige, 305. 6 Gill, 120. Amb., 245. 1 Rep. on Leg., 298. 1 Russell, 543. The widow is considered in the light of a purchaser; not taking her legacy as a gratuity, but as an equivalent for what she relinquishes-Were it not so, she might lose all her interest in the estate, for, having relinquished her dower, she cannot return to it afterwards and claim her former right, certainly not without great difficulty and embarrassment to the estate. Nor do we understand that the respondents call in question this as a general principle of law, but only its application to this will, and more especially in Connecticut, by reason of our statute, which is supposed to be inconsistent with this notion. The more serious question, however, is its application, as we have just.said, to this will. It is claimed the rule is never applied unless the language of the will, in so many words or equivalent words, positively declares that the legacy is to be in lieu of dower. We agree that the books say that the legacy is not in bar of dower unless it is so expressed, but then they do not say how it may be expressed; it must be clearly and satisfactorily expressed, and that is enough; The rule depends essentially on the intention of the testator, and that intention is to be gathered from all the parts of the will taken together; any other rule would be inconsistent and absurd. No technical language or form of expression can be uniformly necessary. The presumption is undoubtedly, that a legacy is a bounty, and not a payment or satisfaction of a debt or demand. The burthen of proof, is on him who asserts the contrary, and the question in the present case must be answered, much as it would be, if the widow were before us, claiming her dower, after having accepted, and so long enjoyed, the provision made for her in the will. We think she could not take both.

We admit it is not always easy, where the language is not full and explicit, to decide what the testator did mean in this particular, but it must be ascertained, and often has been, though not in form expressed. In seeking after the intention of the testator, some have thought the English courts were too much restricted, and too technical in construing the language of the will; certain it is that in some of the cases, the obvious intention of the testator has been defeated, though this is not especially to be complained of in some of the cases, since every will has its peculiar clauses, and the most enlightened judges differ in the construction of them, when drawn in the best manner. See the cases collected in Adsit v. Adsit, 2 Johns. Ch., 455, and the learned and able comments upon them by chancellor Kent, as likewise, 1 Lead, cases in Eq., 283. For ourselves, we are disposed to take the will of Dr. Lord and put upon it his own construction, as we think we can do, to • our own satisfaction. We hold the meaning to be clear, beyond any reasonable question, that his widow is not to have thé ample .and generous bequests given her in the will, (far exceeding the value of her dower,) in addition to her dower. 1. The testator begins by saying, “ I am desirous of disposing of the estate which God has entrusted to my stewardship, in such manner as shall, in my judgment, be best calculated to prevent controversy, and promote concord and happiness among those of my relations and friends who may survive me and who may have claims upon my regards and affections,” that is, I am going to divide and apportion all my property, all that over which I am owning a stewardship, among all who have claims upon my regards and affections, and none of them are to enjoy it otherwise than as I herein direct. Now, who can believe that Dr. Lord intended only to help out the law in distributing his estate, so that his widow should have a double portion, and his other legatees so much less ? But 2ndly, he gives her his dwelling-house and garden, and lot adjoining, on which the chaise house stands, to be hers while she remains his widow. Has she now an estate in this land and these buildings, during her widowhood, by the devise, and an estate for life in one-third of it by dower ? 3rdly, He gives her an ample estate, both real and personal, that she may not need dower for her maintenance. Is this to be augmented with the addition of dower ? 4thly, She is to have as much fruit from the farm given Wm. M. Lord as she wants, pasturage for one cow, one horse, hay for them, fire-wood cut and corded at her door, twenty bushels of corn, twenty of oats, twenty of potatoes, three hundred pounds of beef, to be furnished each year, and all is charged on the farm, in whose hands soever it may be. Now has she, back of all this, a title for life to one-third of this farm? So three other pieces of real estate given Wm, M. Lord, viz., the farm on which the testator lived, the north half of an island in the Connecticut river, with its shad-fishery, and the farm on Malachi hill, which he bought of Thomas D. Lord, are given to William M. Lord, in trust for his mother-in-law, and his unmarried sisters. Has the widow a life estate in one-third of this property ? 5thly, He directs his star lot to be sold, if necessary, to pay debts. Is there dower here ? 6thly, After dividing to the devises all his estate, real and personal, except what he designs for debts, in order to carry out the purpose of a final settlement of his entire property, he gives whatever remains to the daughters of his two deceased brothers, Joseph and Enoch.

From these considerations, it is evident, that Dr. Lord meant to make a specific division of all his property, to be held and enjoyed in the specific form in which he gave it, free and clear of the right of the widow to her dower, and if that intention is to govern us, it would be as inconsistent for her to claim one half of the personal estate as the use of one-third of the real estate, and such a double share by her would shock every honest and honorable mind. No such intention can be ascribed to Dr. Lord, and none to his widow;'for she received the provision made for her in the will and has, at no time, thought of claiming anything more.'

Our statute, page 277, § 20, provides “that when any testator shall devise or bequeath any estate, real or personal, or any pecuniary legacy to his widow, in lieu of dower, she shall within two months next after the time limited for the exhibition of claims against such estate, give notice in writing to the court of probate, before which the will may be proved, that she declines to accept such legacy or devise, and if she fail to give such notice she shall be barred of her dower, and such devise or legacy shall be assigned to her in lieu thereof.”

The statute seems to be made for just such a case as this. It is not needed where the will, in so many words, declares the devise shall be in lieu of dower, for in such case, when the devise is accepted, it would of course be a perfect bar to her dower, certainly in equity, if not at law. Chancellor Kent says, in both, and that such are the modern if not the ancient authorities. 4 Kent Com., 57. In the present case, that language is not used, and yet, if we are right in our construction of the will, the devise is in lieu of dower, and then the statute declares it shall be absolutely so, making that certain which was not made so by the will, and it further provides that this implied and equitable bar of dower shall be followed by an assignment to her in lieu thereof.

As this statute is not necessary, as already said, where there is a positive direction in the will, so it must not be held that every slight gift to the widow is to be held to be in lieu of dower. We must look for the intention of the testator, and then the statute is to be applied to prevent her taking a double portion, according to that intention. To guard against the possibility of the widow taking a double portion, they have, in Massachusetts, and several other states, ,a statute passed as early as 1783, varying the common law. It provides that if the widow claims her dower, she shall receive no benefit from the testamentary provision, unless it appears by the will, plainly the testator’s intention it should be an addition to her dower; our statute is not thus guarded and particular, but leaves room for a fair and just construction of the testator’s intention, but as this construction is to be had under the common law rule, that every legacy is presumed to be a bounty, there will be no danger of an erroneous conclusion. The Massachusetts statute reverses the rule of the burden of proof.

It has been said, that while at the common law, the wife may be considered to be a purchaser, it is because, by that law, she is endowed in all the real estate which her husband had during the marriage, yet in this state, it is not so, because here she is endowed in what he was possessed of, at his death. We attach no importance to this distinction; for here, she takes as a purchaser, both real and personal estate, for she takes them (personal estate to a limited extent) against creditors and heirs, even though the estate be insolvent. This is what she relinquishes under our statute by-taking under the will. Her right, it is true, does not reach property as far back as in England, but it is of the same character, as far as it does reach, and in our courts is entitled to the same regard and the same exemption, as there. The fact that our law considers it for the benefit of commerce to allow the husband to deed away his land, without the consent of his wife, is no argument, why she should not be considered a" purchaser, so far as he does not convey it away, but leaves it untrammelled at his death.

We advise judgment accordingly.

Waite, J.

The testator, in this case, by his will, directed that his debts should be paid out of certain specified property, and, having no children, divided the residue of his estate, with the exception of a few small legacies, between his wife, his adopted daughter and his nephew.

He gave to his wife, the use of his dwelling-house, certain lands, and half the rent of his fishery, during her widowhood, and the residue of his home farm he devised to his nephew, charged with the payment to her annually of certain articles, the produce of the farm.

His bank stock, amounting to more than nine thousand dollars, and constituting nearly one-half of all his estate, he disposed of as follows. He gave to his wife twenty shares, absolutely, and the income of fifty-seven more, during her widowhood, and upon her decease or marriage, he directed that they should be divided between his daughter and the children of his nephew. The remainder of his bank stock, being one hundred shares, he gave, in trust, for the use and benefit of his daughter.

The property specifically appropriated for the payment of debts, proves insufficient for that purpose, and, it is admitted, that it becomes necessary to resort to the bank stock, to supply the deficiency; and the question now is, in what manner it shall be made to contribute.

It is claimed, on the part of the widow, that no portion of that which is given to her, shall be made to contribute, because it is to be considered as having been given to her, in lieu of dower in the real estate. But there is nothing in the will indicating that such was the intention of the testator. It is given to her unconditionally, and in the same manner as that given to his daughter, and without the least intimation, so far as I can discover, that it is' to be in lieu of, or in bar of dower.

Besides he has given to her the use of a valuable portion of his real estate, and it does not appear from the will, but that use, with the produce of the farm, which she is to receive, is fully equal to what her dower would be, independent of the bequest of the bank stock. Nor does it appear but the bequest was as much a bounty, as the portion given to the daughter.

There are indeed, cases in England, where it has been holden that a legacy given to a creditor, in consideration of the debt due to him, or to a widow, in consideration of her relinquishing her right of dower, is entitled to a preference of payment over other legacies, which are mere bounties. 2 Williams Execs., 976. In such cases, the creditor and the widow are' considered as standing in the situation of purchasers.

But I find no case where such preference was ever given, unless the consideration was expressed in the will. The case before us is, therefore, not brought within the principles recognized in any adjudged case to which we have been referred.

And even if the English rule went to the extent claimed, in relation to bequests to widows, it ought not to have any application in this state, where the law respecting dower is very different from what it is in England. There, a widow is entitled to dower in all the real estate, of which her husband was seized during the coverture, notwithstanding any conveyance which he may have tnade. In many cases, therefore, it may be an object for him to extinguish that claim of hers, by a purchase of her right.

But in Connecticut, she can be endowed only of such lands, as her husband died possessed of, in his own right. It is, therefore, in his power by deed to cut off entirely her right of dower. Still he may, if he please, make provision for her by his will, and in it declare that it shall be in lieu of dower, and then it is at her option, either to take her dower, or the provision made for her, upon the terms prescribed in the will; and the statute has limited the period within which she must give notice if she decline accepting the provision made for her.

If the widow in the present case, can have her legacies entirely exonerated from contribution for payment of debts, and the burden cast upon the bank stock given to the daughter, without any intimation or expression in the will, indicating that such was the intention of the testator, I do not see but that it must follow that, in every case, a legacy to a widow will be entitled to the like exoneration, so long as there is other personal property that can be taken for the payment of debts; a rule that, in many cases, might operate unjustly, and even entirely defeat the intention of a testator.

He may have intended, by means of legacies, to divide his estate between his wife and children, in fair and just proportions, and if, as in the present case, his debts should prove greater than he contemplated, that proportion might be destroyed, and while his widow might receive her legacies in full, his children might receive little or nothing.

Indeed, in the present case, there is strong reason to believe that, upon the construction given to the will by a majority of the court, the intention of the testator, in relation to. the disposition of his bank stock will be entirely changed, and a result produced, which, were he living, he would never tolerate. It is manifest that he supposed the fund appropriated for the payment of his debts was sufficient for that purpose, and that he meant his daughter should have the greatest share of his stock,—whereas that share may be greatly reduced, if not entirely swept away. But if each were to contribute according to the amount of their shares, the same relative proportion would be maintained.

The rule thus required, in my judgment, will not only, in many cases, be productive of great inequality and injustice, but will be in violation of a very wise provision in our statutes. It is enacted that “ whenever any estate, real or personal, bequeathed or devised to any person, shall be taken and sold for the payment of the testator’s debts, as the law provides, all the other legatees, devisees, or heirs, shall contribute their average, or proportional part of such estate, to the person from whom such legacy or devise shall be taken away, and he may maintain an action at law to compel such contribution.” Statutes, tit. Estates, § 45.

Here is no exception in favor of any legacy to a wife, and if the legacy of the daughter should be taken for the payment of the debts of the deceased, I see not why she might not, under the provisions of that statute, maintain an action at law to compel the widow to contribute. The statute is founded upon the soundest principles of justice and equity, and ought not to be departed from, unless the testator, in the plainest terms, has otherwise ordered in his will.

I am, therefore, of opinion, that the legacies of the bank stock should all contribute proportionally towards the payment of the balance of the testator’s debts.

Church, C. J., was of the same opinion.


author: Storrs, J.

text:
    Park vs. O’Brien.
    On the trial of a case of collision between carriages, occasioned, as the declaration alleged, by the negligence of the defendant, in so carelessly and negligently driving and guiding his horse and wagon, near to, and past the horse and wagon of the plaintiff, which was standing on the public highway, that the wheels of said wagon then and there ran and struck, with great force and violence, upon and against said wagon, of the plaintiff, &c., the burden of proof that such collision took place, without any negligence on the part of the plaintiff, which contributed essentially to produce it, rests on the plaintiff, and it is necessary for the plaintiff to show such want of negligence on his part, in order to recover, and the defendant has a right to claim an instruction, to that effect, to the jury.
    Where, however, the plaintiff in his opening turn, adduced evidence to disprove any such want of negligence on his part, and the defendant met such proof with evidence, on his part, conducing to show such negligence, and requested such instruction, and the court charged the jury, that if the plaintiff di>’ not exercise reasonable care and prudence in leaving his horse unhitched and unattended, he could not recover, and also, that in order to determine whether the plaintiff exercised reasonable care and prudence, they might take into consideration the character, disposition and temper of the plaintiff’s horse, and the manner in which he had been trained, as well as all the other circumstances of the transaction; it was held, that such charge substantially complied with such request and was not erroneous.
    The question of negligence in such case is one exclusively of fact, for the jury to determine. Therefore, where it was claimed that the court should instruct the jury that, it being admitted that the horse of the plaintiff was a spirited animal, the act of the plaintiff in leaving him unfastened and unattended, was, as a matter of law, a want of ordinary care on his part; it was held, that the court committed no error in leaving the question whether the plaintiff had or had not been guilty of negligence, to the jury.
    This was an action of trespass, and trespass on the case, there being two counts of the former description, and one of the latter. The cause was brought to the county court for New London county, and tried at Norwich, in February, 1853.
    Said latter count, which is the only one material to the present case, alleged “ that the plaintiff’s horse and buggy-wagon were standing adjacent to the public highway in the town of Preston, and the defendant was also then and there possessed of a certain other wagon and a certain other horse, driving the same, and which last mentioned horse and wagon were then and there under the care, guidance, government, and direction of the said defendant, who was then and there driving the same, near to, and past the wagon and horse of the plaintiff; nevertheless, the said defendant, then and there, so carelessly, negligently, and improperly drove, guided and governed the said last mentioned horse and wagon, that by the carelessness, negligence, and improper conduct of the said defendant, the wheels of said wagon of the defendant, then and there, ran, and struck, with great force and violence, upon and against the said buggy of the said plaintiff, and then and there upset the same, frightened the said horse thereto attached, which said horse, from the cause aforesaid, then and there ran with the said buggy, crushed, injured, broke to pieces, and nearly spoiled the top, thills, body, running parts, and other parts of the same, and said buggy was thereby, then and there, rendered of no use or value to the plaintiff, and said horse was also, then and there, by means thereof, frightened, wounded and lamed,” &c.
    On the trial, it was proved that the plaintiff drove his horse, attached to a four-wheeled carriage, to the store of Henry Hewett, in the town of Preston, situate some five or six feet from the public highway, and on a level therewith, and placed said horse so that his head nearly touched the front of said store, and the carriage to which he was attached extended partly across the mouth of an avenue, or recess, leading from said highway to a shed, between said store and said Hewett’s dwelling-house. In that position the plaintiff left said horse, unhitched and unattended, and went into said store. It further appeared that said avenue or recess is fifty feet long, and fifty-three feet wide, and in a place where some persons going from Preston to Norwich on business, are accustomed to leave their horses and wagons, and that the defendant’s horse and wagon were standing in said avenue, at the time the plaintiff left his horse and carriage, .in the situation aforesaid. It appeared also, that between the end of the plaintiff’s carriage and said dwelling-house, there was a space of thirty-five feet, unoccupied and unobstructed, which was sufficient for two wagons, like that of the defendant, to have passed into, and out of, said avenue, without the least difficulty. The plaintiff introduced evidence to prove, and claimed that he had proved, that while his horse and carriage were standing in the position, and under the circumstances aforesaid, the defendant, with full knowledge thereof, started, with his horse and wagon, to go from said avenue to said highway, and in so doing, drove his horse so negligently and carelessly, that by reason of such negligence and carelessness, one of the wheels of his said wagon struck a wheel of the plaintiff’s carriage with so much force and violence, that said carriage was nearly upset, and one of the thills thereof broken, and that the plaintiff’s horse thereby became frightened, ran, upset said carriage, and broke the same in pieces. It was not, however, claimed by the plaintiff, that said acts of the defendant were wanton, or intentional. The plaintiff admitted that his horse was a spirited animal, but introduced evidence to prove, and claimed to have proved, that his horse was perfectly gentle and kind, so that a child of nine years of age had been permitted to drive him, and had driven him without difficulty or trouble, in a carriage; that he had been thoroughly trained, and accustomed to stand at all times, and places, when and where he had been driven, unattended and unhitched ; that the plaintiff and the person of whom he purchased said horse had never hitched him, when using him in a carriage, but had always been in the habit of leaving him unhitched .and unattended, as he was left at the time the injury complained of was done; that while so left, said horse was never known to become frightened, or move from the place in which he was so left, and that, in leaving his said horse unhitched and unattended, as aforesaid, at the time and place aforesaid, the plaintiff exercised reasonable care and prudence.

      The defendant introduced evidence to prove, and claimed that he had proved, that, in passing from said avenue, or recess, to said highway, with his horse and carriage, he was not guilty of negligence, or carelessness, but that, in driving his said horse, he used the utmost care and caution. He also claimed to have proved that the thill of the plaintiff’s carriage was not broken at the time, and in the manner claimed by the plaintiff, but was broken, after the horse had run with the carriage, and in consequence of his upsetting the same.
    The defendant also claimed to have proved, that the plaintiff’s horse was not a gentle and kind horse, but was easily frightened, and had run with the plaintiff, several times before the injury complained of, and that the plaintiff, in leaving his said horse unattended and unhitched, as aforesaid, did not exercise reasonable prudence and care.
    The defendant thereupon claimed and requested the court to charge the jury, that if they should find that he was guilty of carelessness and negligence, as claimed by the plaintiff, still, it being admitted that the acts of the defendant were not wanton or willful, the plaintiff could not recover, if he himself did not exercise reasonable care and prudence, in leaving his horse unhitched and unattended, and the want of said care and prudence contributed essentially to produce the injury. The court did so charge the jury, but also charged them, that, in order to determine whether the plaintiff exercised reasonable care and prudence, they might take into consideration the character, disposition and temper of his horse, and the manner in which he had been trained, as well as all the other circumstances attending the transaction.
    The defendant also requested the court to charge the jury, that the burden of proving, that the plaintiff exercised reasonable care and prudence, was on the plaintiff.
    With this request the court complied, only so far as the aforesaid instructions show a compliance therewith.
    The defendant further claimed, and requested the court to charge the jury, that, it being admitted that the horse of the plaintiff was a spirited animal, the act of the plaintiff, in leaving him unhitched and unattended, was in the judgment of law, not exercising ordinary care and prudence. The court refused so to charge the jury, but instructed them that the question whether the plaintiff exercised ordinary care and prudence, or not, was a question of fact, for them to determine, from all the circumstances in the case.
    The jury returned a verdict in favor of the plaintiff; and, the defendant thereupon filed a bill of exceptions, and, by motion in error, brought his case to the superior court, where the judgment of the county court was affirmed. He then, by motion in error, brought the record before this court for revision.

      Adams and Park, for the plaintiff in error, contended,
    1. That the refusal of the court to charge the jury, that the burden of proving reasonable care and prudence was on the plaintiff, was erroneous. Lane v. Crombie, 12 Pick., 177. Adams v. Carlisle, 21 Pick., 146. Parker v. Adams, 12 Met., 415. Bosworth v. Swansey, 10 Met., 363.
    2. That the court erred in treating the question, whether the plaintiff exercised reasonable care and prudence, as a question of fact, to be submitted to the jury, and not as a question of law, to be determined by the court. Tindal v. Brown, 1 Term. R., 168. Spooner v. Spoor, 12 Met., 284.
    The law regards leaving a spirited horse unfastened and unhitched in a public street, as want of reasonable care and prudence, Illidge v. Goodwin, 24 E. C. L. R., 272.
    The rule, by which the jury were to determine whether the plaintiff had exercised reasonable care and prudence, as directed by the court, was incorrect.

      Hovey and Wait, for the defendantan error, contended,
    1. That the question, whether the plaintiff exercised reasonable care and prudence, was properly submitted to the jury, as a question of fact, for them to determine; and for •this purpose it was not only proper, but necessary, for the jury to take into consideration the character, disposition, temper and training of the horse, in connection with the other circumstances of the case. Stark on Ev., vol. 2, tit. Negligence. Birge v. Gardiner, 19 Conn. R., 507. Beers v. Hou. R. R. Co., 19 Conn. R., 566. Robinson v. Cone, 13 Law Rep., 444. Moore v. Meyne, Cowp., 479. Davies v. Mann, 10 M. & W., 545. Reece v. Rigby, 6 E. C. L. R., 401. Mansit v. Stanly, 39 E. C. L. R., 559. Lynch v. Nurdin, 41 E. C. L. R., 422.
    2. The plaintiff having introduced evidence that he exercised reasonable care and prudence, thus taking upon himself the burden of proof upon that point, and the court having charged the jury that the plaintiff would not recover, if he did not exercise such care and prudence, there was no -necessity or reason- for saying to the jury further, that the burden of proof was on the plaintiff. Selleck v. Sugar Hollow T. Co., 13 Conn. R., 453. Johnson v. Blackman, 11 Conn. R., 342. Williams v. Cheeseborough, 4 Conn. R., 356. Church v. Rosebeck, 15 Conn. R., 259. Dulles v. Deforest, 19 Conn. R., 190. Robbins v. Wolcott, 19 Conn. R., 356. Wilkinson v. Griswold, (12 S. & M., 669,) U. S. Dig., 1849, p. 345. Maston v. Fanning, (9 Mis., 305,) U. S. Dig., 1848, p. 286. Randall v. Parramore, (1 Branch, 409,) U. S. Dig., 1847, p. 377. Greenup v. Stoker, (3 Gilman, 202,) U. S. Dig., 1847, p. 377. Hall v. Hall, (6 Gill. & Johns., 386,) 2 U. S. Dig., 169, § 265.
    3. That whether the plaintiff exercised ordinary care and prudence was not a question of law for the court to decide, upon a part, only, of the facts proved or admitted, but was a question of fact for the jury to determine, from all the circumstances of the case. Dorman v. Jenkins, 2 Ad. & El., 256, (29 E. C. L., 80.) Sills v. Brown, 9 Can. & Payne, 601, (38 E. C. L., 245.) Raisin v. Mitchell, 9 Can. & Payne, 613, (38 E. C. L., 252.) N. H. S. B. T. Co. v. Vanderbilt, 16 Conn. R., 420.
   Storrs, J.

The first error assigned, on which the plaintiff in error, the defendant below, relies, is that the county court omitted to charge the jury that the burden was on the plaintiff below, of proving that when the injury complained of was committed, he was in the exercise of reasonable care and prudence. We accord, entirely, with the decisions,' cited by him to show that, in this suit, the burden of showing that the injury was not attributable to the want of reasonable care on his part, rested on the plaintiff The reason of this rule is, that the plaintiff must prove all the facts which are necessary to entitle him to recover, and this is one of those facts. It was necessary for the plaintiff to prove, first, negligence on the part of the defendant, in respect to the collision alleged, and, secondly, that the injury to'the plaintiff occurred in consequence of that negligence. But in order to prove this latter part, the plaintiff must show that such injury was not caused, in whole, or in part, by his own negligence; for, although the defendant was guilty of negligence, if the plaintiff’s negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant’s negligence. Therefore the plaintiff would not prove enough to entitle him to recover, by merely showing negligence on the part of the defendant; but he must go further and also prove the injury to have been caused by such negligence, by showing a want of concurring negligence on his own part, contributing materially to the injury. Hence, to say that the plaintiff must show the latter, is only saying that he must show that the injury was owing to the negligence of the defendant. And as the defendant had a right to have the jury informed, as to what facts the plaintiff must prove in order to recover, he had a right to require the court to instruct them, that it was incumbent on the plaintiff to prove a want of such concurring negligence on his part. But we are of opinion that this instruction was given substantially by the court below, and in such a manner that the jury could not have mistaken its import. The plaintiff, in making out his case, offered evidence to prove, and claimed to have proved, that when the injury occurred, he was in the exercise of reasonable care and prudence in the management of his horse. He assumed the burden of proving that fact; and when he had rested, this proof was met by evidence introduced by the defendant, tending to disprove, and claimed by him to disprove, such care and prudence on the part of the plaintiff. Upon this part of the case, after the evidence was closed, the defendant requested the court to charge the jury that the plaintiff could not recover, if they should find that he was guilty of negligence, which contributed essentially to produce the injury; and the court charged the jury as requested by the defendant, and also, that in order to determine whether the plaintiff exercised reasonable care, and prudence, they might take into consideration the character, disposition and temper of the plaintiff’s horse, and the manner in which he had been trained, as well as all the other circumstances attending the transaction. We think that the jury could not have failed to understand from this charge, in connection with the evidence, on both sides, to which it alluded and was applied, that if the evidence of the plaintiff did not show, or that of the defendant disproved, that the injury was not caused by the want of reasonable care, on the part of the plaintiff, the latter could not recover. The defendant therefore had the benefit, in the charge, of the rule which he requested the court to express to the jury, although not in the precise words in which he requested the court to express it.

The next error assigned, which is relied on by the plaintiff in error, is that the county court did not instruct the jury that, it being admitted that the horse of the plaintiff was a spirited animal, the act of the plaintiff in leaving him unfastened and unattended, was, as a matter of law, a want of ordinary care on his part, but left it to the jury, as a question of fact for them to determine, from the evidence, whether the plaintiff was, in this respect, guilty of negligence. We have no doubt that this course was correct. The question, as to the existence of negligence, or a want of ordinary care, is one of a complex character. The inquiry, not only as to its existence, but whether it contributed with negligence on the part of another, to produce^ a particular effect, is much more complicated. As to both, they present, from their very nature, a question not of la\y, but of fact, depending on the peculiar circumstances of each case, which circumstances are only evidential of the principal fact, that of negligence or its effects, and are to be compared and weighed by the jury, the tribunal whose province it is to find facts, not by any artificial rules, but by the ordinary principles of reasoning ; and such principal fact must be found by them, before the court can take cognizance of it, and pronounce upon its legal effect. This is in accordance with, and indeed is only a repetition of, our decision in Beers v. The Housatonic Railroad Company, 19 Conn. R., 566. If the circumstances, tending to prove negligence, such as was here imputed to the plaintiff below, could, as matter of law, be deemed to constitute or prove such negligence in any case, it is obvious that in the present one, we have not before us the circumstances, or evidence, which the bill of exceptions states to have been adduced on the trial, on that question, by either of the parties, and therefore we have not the means of determining whether the county court erred on this subject, unless we are prepared to say, what indeed the plaintiff in error virtually claims, that the leaving of a spirited horse attached to a carriage, with no other knowledge of his disposition, habits or character, unfastened and unattended by a person, at any time, or in any place, or for any purpose, or for any period of time, or indeed under any circumstances, is to be pronounced, as a conclusion of law, to constitute a want of ordinary care; a proposition which is manifestly absurd. The argument of the plaintiff in error, in favor of the practicability and propriety of treating the question of negligence as one of law, rather than of fact, is not aided by his reference to that class of decisions in actions upon commercial paper, where courts have pronounced upon the question of reasonable notice of its dishonor, as one of law. They apply only to a very peculiar class of mercantile contracts, and proceed on reasons, founded partly on public policy, and partly on the custom of merchants; principally, perhaps, on such custom, which constitutes the law merchant, by which such contracts are governed, and which has been ascertained by courts, to be in accordance with the arbitrary or artificial rules, which have been as a part of the law merchant, on the subject of such paper, adopted and engrafted into the common law. Viewed in this light, they are plainly inapplicable to the case now before us.

The other grounds assigned for error have been abandoned, and are clearly untenable.

We therefore advise that a new trial should not be granted.

In this opinion the other judges concurred, except Ells-worth, J., who was disqualified.


author: Ellsworth, J.

text:
    Comstock vs. Comstock.
    The defendant conveyed to the plaintiff a tract of land by warranty deed, his title to the same having been acquired by devise under a will, which provided, that if he should not leave,, heirs of his body, such land at his death should go to the heirs-at-law of the testator, and which also pledged the same for the support of the testator’s son D, during life. In an action on the covenants contained in said deed it was held, that the defendant had only an estate in tail in the land so devised, and also, that the same was under incumbrance for the support of D, and therefore, that the plaintiff was entitled to recover.
    This was an action brought to the superior court, for the county of New London, by Jesse Comstock against Asa Comstock, upon the covenants of a warranty deed of a certain tract of land situated in the town of Montville.
    The breach, alleged in the plaintiff’s declaration, was as follows:
    “ That, at the time of the date, execution and delivery of said deed, said Asa was not the owner of said premises, as of an estate in fee simple, but had no greater or other estate otherwise than an estate in tail to himself, and the heirs of his body, and had not good right to bargain and sell the same as aforesaid, nor even the same, free of incumbrances, but, on the contrary, under, and by virtue of the last will and testament of Nathaniel Comstock deceased, was charged with the support of one David Comstock, then, and still in life, for the term of his natural life.”
    The cause was referred to said superior court, upon the following agreed statement of facts, and by said court was reserved for the advice of this court.
    The title of the defendant, to the land embraced in said deed, was derived solely from the last will and testament of his father, Nathaniel Comstock deceased, who, at his death, owned the same in fee.
    Said will was duly established by the court of probate for the district in which said land was situated. The parts thereof material to the present case are the following :

      “ I give unto my loving wife, Mary Comstock, the use and improvement of all my real estate, during the term she shall remain my widow, but should she marry again, I then give her the improvement of one-third of said real estate during her natural life.
    *******
    “I give unto my son, Asa Comstock, after the term given my wife shall expire, all my real estate, not otherwise disposed of in this will, together with the stock and farming tools, after the decease of his mother, and should he not leave heirs of his body, then said real estate after his decease, to go to my heirs-at-law.
    * ' * ' * * * * *
    “ I give unto my son, David, one good feather bed, one bolster, and two pillows, two good coverlids, two thick blankets, two pair of flannel blankets, two pair of sheets, two pair of pillow-cases, with a good bedstead and cord, all to be kept in good order for his use, and he is to have the use of the bed-room in the north-east corner of my house, to lodge in, and in case of his being sick in cold weather, he is to have his bed in the east'great room, and a comfortable fire—the wood to be supplied by my son Asa, who is to be at the expense of David’s support during David’s life, and the land, given to Asa, is hereby pledged for David’s support; Asa to have the benefit of his labor.”
    The land, devised to said Asa, was valued in the inventory of the estate of the testator, at nineteen hundred dollars. The support of said David was worth one hundred and fifty dollars per annum.
    On the 12th day of March, 1849, Asa Comstock, for the consideration of sixteen hundred dollars, executed the deed, upon the covenants of which said action was brought, conveying to said 'Jesse a part.of the land devised to him by the will of said Nathan, and pledged for said David’s support. The money, paid by said Jesse as the consideration of said deed, was applied by said Asa to the purchase of land bought of Peter E. Strickland. As a part of the transaction between said Asa and Jesse, the former mortgaged said last mentioned land to said Jesse, subject to the following condition. “ Whereas, said Asa Comstock has sold to the said Jesse Comstock, a certain tract of land, lying in said town of Montville, containing about twenty acres, with a house and barn thereon standing, which said land is particularly described in said Asa Comstock’s deed to said Jesse, dated the 12th day of March, 1849, and recorded in Montville town records, and, whereas, said land so sold under and by virtue of the will of Nathan Comstock, is pledged for the support of David Comstock, as in said bill set forth. Now, if the said Asa Comstock shall well and truly support said David, according to said will, so that no claim or demand shall' be made upon the land.aforesaid, conveyed to me, and the said Asa shall save the said Jesse Comstock harmless from all claims on said land, on account of said David, then the foregoing deed shall be void and of no effect; otherwise, to be and remain in full force, power and virtue.”
    By selling said land to Jesse and the purchase of Strickland, the condition of Asa for the support of David, was improved.
    After his purchase, Jesse Comstock, relying upon the title and covenants in said deed and mortgage, made certain improvements, and erected buildings on the premises, at an expense of about five hundred dollars.

      Mb Cwrdy and Chadwick, for the plaintiff.

      Foster and Bolles, for the defendant.
   Ellsworth, J.

There is no doubt that the plaintiff is entitled to recover for the breaches of covenants stated in the declaration. The defendant, when he executed the deed, was not seized of the premises, as a good, indefeasible estate in fee simple, nor were the premises free of incumbrance, nor had the plaintiff a right to sell them in fee simple. The estate of the defendant, under his father’s will, is an estate tail, and nothing more; his lineal heirs only being entitled to take under and through him, and he never having any greater than a life estate to convey. To this point it cannot be necessary to cite authorities, for the books are full of them. They will be found cited in 1 Jarn. on Wills, 232, and Hudson v. Wadsworth, 8 Conn. R., 358.

Nor is there any question, that this estate tail in the defendant was incumbered with a charge for the support of the defendant’s unfortunate brother, David Comstock.

The defendant had, however, some right in the premises conveyed, and the damages to be recovered by the plaintiff must depend upon a further hearing in the superior court.

Many questions and ^ legal distinctions were made, and elaborately discussed by the defendant’s counsel, in the course of his argument, which we have no occasion to consider or decide, because we have no doubt whatever, upon the question above decided, and this is . enough to make an end of the controversy between the parties.

We advise judgment for the plaintiff.

In this opinion the other judges concurred, except Storrs, J., who was not present when the case was argued, and therefore gave no opinion.

Judgment for plaintiff.