text:
    Marlborough vs. Sisson and others.
    In an action on the ease, by the town of M, for illegally transporting a pauper into said town, where the question was, whether such pauper had formerly gained a settlement in the state of Vermont, under the statute of that state, which provides, that every person who shall inhabit in any town or place within said state, and have been charged with and paid his share of the public rates or taxes of such town or place, for the 'space of two years, shall acquire a settlement in such town, and it appeared that such taxes were assessed and collected in muph the same manner as in this state, but there was no record evidence before the court, that a tax, claimed to have been paid by said pauper, had been legally assessed, and no foundation had been laid for dispensing with such evidence ; it was held, that such evidence was not admissible.
    The defendant in such action, having offered evidence, that said town of M had rendered aid and support to said pauper and liis family at various times, and while poor and chargeable as a pauper, but which aid said town claimed was rendered under a mistake, and without knowing the real place of said pauper’s settlement, requested the court to instruct the jury, that, though the plaintiffs were thus ignorant, and mistaken, yet such facts, in connection with other evidence in the case, would authorize the jury to presume any facts not established by the defendant’s evidence, necessary to constitute said pauper’s settlement in said town of M. But the court instructed the jury, that said acts, if proved, did not estop or preclude the plaintiffs from showing, that said pauper was not legally settled in said town, when said aid was furnished, but that they were evidence, in tire nature of admissions against said town, which the jury were to consider, in connection with the question, whether said aid was or was not furnished by the plaintiffs, under any mistake as to the real place of said pauper’s settlement, or whether the plaintiffs so acted, knowing, or with the means of knowing, the place of his real settlement. Held, that such course was correct.
    The court may, at its election, entirely- disregard a request to give particular instructions to the jury, which are not wholly correct, or may comply with the same, so far as the instructions asked for are correct.
    This was an action on the case. The declaration embraced two counts. The first stated that, on the 8th of January, 1851, one Samuel Ingraham, an aged and infirm man, nearly eighty years old,- and who had no legal settlement in the town of Marlborough, was residing in the town of East Haddam, and being, from age and infirmity, unable to sup-port himself, and, having no means of subsistence, was chargeable to, and supported by, said town of East Haddam ; and the defendants, who were then, and now are, inhabitants of said town'of East Haddam, and having property liable to taxation, and being actually taxed therein for the expenses of said town of East Haddam, knowing the premises, but ‘contriving and fraudulently intending to cast the burden of supporting the said Ingraham upon said town of Marlborough, and thereby to relieve said town of East Haddam, and themselves, as inhabitants thereof, from the expense of supporting said Ingraham, transported him, on said 8th of January, into said town of Marlborough, and left him there, in want and distress, as aforesaid. And, by reason of the premises, the plaintiffs were, by law, obliged to support, and have since so supported the said Ingraham, and have expended for the same, the sum of one hundred dollars; and the said Ingraham still continues to reside in said Marlborough, destitute as aforesaid, and said Marlborough still continues liable to support, and does support him.
    The defendants were selectmen of said town of East Had-dam, and, in order to relieve said town of East Haddam, and themselves, as such inhabitants thereof, from the support of said Ingraham, and to subject the plaintiffs wrongfully thereto, on the day and year last aforesaid, made an ex parte application to certain of the civil authority of s.aid East Had-dam, and untruly represented to them, that said Ingraham was a settled inhabitant of said town of Marlborough, and thereby fraudulently procured a warrant directed to a constable, commanding him to transport said Ingraham to said town of Marlborough; and thereupon, by virtue of said warrant, and by procurement of the defendants, said constable afterwards, on said eighth day of January, transported said Ingraham into said town of'Marlborough, and there left him, utterly destitute and helpless, as aforesaid. Whereby the plaintiffs, by law, were obliged to support and did support said Ingraham, &c.
    The defendants pleaded the general issue, with notice that, under said plea, they would give in evidence that, on the 6th day of January, 1851, and for a long time before and subsequent, the defendants were selectmen of the town of East Haddam; that on the day aforesaid, and for a long time before and after, the said Samuel Ingraham, a settled inhabitant of the town of Marlborough, was residing in said town. of East Haddam, unable to support himself and family, and became chargeable to said town of East Haddam ; and that the defendants, as selectmen of said town, believing said Ingraham to be a settled inhabitant of the town of Marlborough, as it was their duty to do, applied to the civil authority of said town of East Haddam, a major part of whom, by warrant under their hands, directed to William L. Cone, one of the constables of said town of East Haddam, ordered said Ingraham to be conveyed to said town of Marlborough, which warrant was executed by said constable, in conformity with the requirements thereof: which are the acts complained of in the'plaintiffs’ declaration.
    On the trial to the jury, it was admitted that, in January, 1851, Samuel Ingraham, being a poor person, and unable to support himself, was, by virtue of the warrant set up in said notice, removed, by direction of the defendants, from said East Haddam into said town of Marlborough, where he has since remained in a poor and necessitous condition. The plaintiffs claimed to have proved, that they had expended, for the necessary and comfortable support and maintenance of said Ingraham, since said removal, one dollar per week for his board, and from five to seven dollars for his other necessary expenses.
    It was admitted, that said Samuel was born on the 1st of March, 1774, in that portion of the society of Marlborough which was then a part of the town of Colchester, and which, by the act of 1803, incorporating the town of Marlborough, was included and still remains within the limits of the latter-town, where his father resided, and that said Samuel was therefore a legally settled inhabitant of said town of Marlborough, at the time of its incorporation, and also, at the time of his removal from.East Haddam, unless, subsequently to his arriving at the age of twenty-one years, he lost his settlement in said Marlborough, by having gained a settlement in the town of Weybridge, in the state of Vermont, or in the town of Hebron in this state.
    The plaintiffs offered evidence to prove that said Samuel, in March, 1797, with his father, removed to said town of Weybridge, and remained there until the first part of March, 1800; and that while there, he was, for the space of one year, a healthy, able-bodied person, of peaceable behavior, and able to pursue sufficiently, the ordinary branches of labor; and that, while he was so residing in Weybridge, he performed military duty there; and, in connection with said evidence, the plaintiff offered, and read in evidence, the statute of the state of Vermont, in force when said Samuel went to and while he so resided in said Weybridge, which enacts that “ every person who shall inhabit in any town or place within said state, and shall, for himself, or on his own account, have executed any public office or charge in such town or place during one whole year, or shall have been charged with and paid his or her share of the public rates or taxes of such town or place, for the space of two years, shall be deemed and adjudged to have obtained a legal settlement in such town or place.”
    The plaintiff offered to prove, by the testimony of said Samuel, that, in the years 1798 and 1799, while he so resided in said town of Weybridge, he had been charged with and had paid his share of the public rates .of said town, viz., the town, county and state rates and taxes. He testified that, during said two years, he had been called on by the collector of said taxes, for payment thereof, and that he had always paid the same, when so called on by the collector therefor; but said Samuel could not recollect or state at what particular times, within said two years, he had been so called on or paid said taxes, or the amount thereof. And there was no other evidence except the testimony of said Samuel, to show the assessment on, or payment by him, of said taxes. The defendants denied any such assessment or payment of taxes, and objected to said testimony of said Samuel; as incompetent and inadmissible, for the purpose of proving that he had, during said time, been charged with, or paid any such taxes; but the court overruled said objection, and admitted said evidence.
    The plaintiffs also offered to prove, that said Samuel ceased to reside in Weybridge, in March, 1800, and that he resided successively in several different towns, until April, 18.12, when he came to the town of Hebron, where he continuously resided more than six years, and thereby acquired a legal settlement in said Hebron, if he did not acquire a settlement in said "Weybridge during his residence there.
    The defendants denied that said Samuel ever so acquired a legal settlement in said Hebron, and offered evidence to prove, that no period of over two years elapsed while he so resided in Hebron, during which he did not receive aid and support from said town of Marlborough. They offered in evidence the books of said town of Marlborough, to show that, in the year 1805, said town furnished said Ingraham and his family with a house, and with provisions and necessaries of life, and paid the funeral expenses of his deceased child; and that he and his family were unable to support themselves, and they so continued to furnish him with aid, in support of himself and his family, and with medical attendance, in the years 1806, 1807,1809, 1813; 1814, 1815, 1821,1824, 1825, 1832, 1833,1837,1838 and 1839, and that, during all said time, he was unable to provide for himself and his family, and that, in 1820, said town of Marlborough paid bills for the support and necessary attendance furnished to the wife of Jared Ingraham, the son of said Samuel, born to him while he so lived in said Weybridge, and who had no settlement except in right of his father, and who was poor and unable to support himself and his wife; and that said town of Marlborough paid for the removal of said Jared and his family, in 1826, from said town of Colchester into said town of Marlborough, he being at the time poor, and chargeable as a pauper, and so continued to furnish said Samuel with aid while he lived in East Haddam and Marlborough, at various times down to the year 1848; and that, during that time, he was, for the most part, poor, and chargeable as a pauper; that, in 1832 and 1833, said Marlborough furnished said Samuel with provisions for himself and his family, and timber with which to work, and partly gain his livelihood; that, in the year 1837, while said Samuel was living in East Haddam, poor, sick, and unable to take care of himself, said Marlborough assumed the care of him, and paid the expenses of his sickness; that in 1849, while said Samuel was residing in said town of Salem, in a condition of poverty and wholly unable to support himself, said Marlborough continued to pay the expenses of his support while there, and, under the direction of the selectmen of said Marlborough, caused him to be removed from said Salem, and placed in the poor-house of said Marlborough, where he remained about two months, when he left and returned to said Salem, and afterward, in 1850, came to said East Haddam, from whence he was, in January, 1850, removed to said Marlborough, in the manner set up in the defendants’ notice.
    The plaintiffs offered evidence to prove, and claimed to have proved, that, if any aid had been rendered, by said town of Marlborough, in the support of said Samuel or his family, as claimed by the defendants, it had been rendered under a mistake and ignorance, on the part of said town, and of its selectmen and agents, as to the real place of said Samuel’s legal settlement, and ignorance that it was not in said Marlborough.
    The defendants claimed, that said aid, so by them claimed to have been rendered by said Marlborough, was not rendered under any such mistake or ignorance, but that the selectmen of said Marlborough, from the year 1805 to the year 1824, who are now dead, were cognizant of said facts, connected with the residence of said Samuel in Weybridge, and also in Hebron, and that, with such knowledge, they continued such aid and support, and that these facts, in connection with the other evidence in the case, though the plaintiffs were under such mistake and ignorance, as claimed by them, thereby inducing the defendants to believe that he was legally settled in said Marlborough, and to act accordingly, would authorize the jury to presume any facts, not established by the defendants’ evidence, necessary to continue said Samuel’s settlement in said town of Marlborough, and requested the court so to charge the jury.
    The court did not charge the jury, on this point, as requested by the defendants, but instructed them, that said acts of the plaintiffs, in furnishing aid and support to said Samuel or his family or children, if proved by the defendants, did not estop or preclude the plaintiffs from showing, that said Samuel was not legally settled in said town of Marlborough, when such aid or support was furnished or given, but that they furnished evidence, in the nature of admissions against said town of Marlborough, which the jury were to consider, and to which they were to give such weight as, in the opinion of the jury, it was entitled to, on the question „whether said Samuel was then or had been since settled in said town of Marlborough, and that, in weighing said evidence, they were to consider it, in connection with the fact, if it was proved by the plaintiffs, that said aid and support were furnished by said town of Marlborough, under a mistake or ignorance, on the part of said town, as to the real place of said Samuel’s legal settlement, as claimed by the plaintiffs, as well as any proof adduced by the defendants, that the plaintiffs did not so act under any mistake or ignorance, or so acted with the knowledge, or the means of knowledge, of his place of legal settlement. " .
    The jury returned a verdict for the plaintiffs ; and the defendants moved- for a new trial, on the ground that the court erred in admitting the testimony objected to, and in omitting to charge the jury as requested by them.

      Bulkeley and W D. Shipmcm, in support of the motion, contended,
    1. That the court erred, in- admitting the testimony of Ingraham to prove that he had gained a settlement, under that clause of the statutes of Vermont, relating to the payment of taxes, because, 1. There was no evidence before the court, of any legal assessment of taxes,- or that he was “ charged with ” the same, within the meaning of the statute. Vermont Stat., vol. 1, pp. 383, 384, ed. 1808. Starksboro v. Hinsbury, 13 Verm., 215. Downing v. Roberts, 21 Verm., 441. Litchfield v. Farmington, 7 Conn. R., 110. Middletown v. Berlin, 18 Conn. R., 189. 2. To prove that a settlement was gained, under this clause of the statute, it should be shown that a tax was legally laid and assessed, according to the requirements of the laws of Vermont then in force. Parol evidence is inadmissible, and incompetent to show this; at least, until it has been shown that the records of the town, relating to such assessment, have been lost, or can not be produced. Vermont Stat., vol. 1, pp. 414, 433, 420, 418, 407 and 408, vol. 2, 168. 1 Greenl. Ev., 113. Downing v. Roberts, 21 Verm., 441. Collamer v. Drury, 16 Verm., 574. Hury v. Chester, 15 Verm., 460.
    2. That the court erred in omitting to charge the jury, as requested by the defendants, that, from the course pursued by the plaintiffs, through a period of nearly half a century, in treating said pauper as a settled inhabitant of the town of Marlborough, and paying for his maintenance as such, in connection with the other circumstances in the case, they had a right to presume any facts consistent with the claim of the defendants, that his settlement still remained there. Cambridge v. Lexington, 17 Pick., 222. Grote v. Grote, 10 Johns., 402. Schaober v. Jackson, 11 Wend., 36, 37.

      T. C. Perkins and R. D. Hubbard, contra, contended,
    1. That, if the testimony of Ingraham conduced to prove any material fact in issue between the parties, the ruling of the court was correct.
    2. That such evidence tended to prove that Ingraham was charged with taxes, and the payment by him could only be proved, by parol.

    3. That this question is to be settled, as if the issue were between Ingraham and the town of Weybridge. That town would be estopped from denying the legality of such assessment. ■.
    4. That the court was not required, by any principle of law, to instruct the jury that they were authorized to presume all the facts, not proved by the defendants, necessary to continue Ingraham’s settlement in the town of Marlborough. The instructions asked for, assume that Marlborough was ignorant of the place of Ingraham’s settlement, and their acts were no admissions.
    5. That the instructions asked for, required the jury to presume that Ingraham did not reside in Weybridge, as the plaintiffs claimed he did; that he did not pay his public rates and taxes there, and that he did not acquire a settlement in Hebron. If the town of Marlborough acted in ignorance, why should these facts, and every other, be presumed against them ?
    6. That, if the instructions asked for were erroneous, the court is not bound to respond to them at all.
   Ellsworth, J.

The defendants ask a new trial, because, first, there was no evidence of the existence of a tax, legally imposed upon' the pauper, and secondly, the court mistook the law in its instructions to the jury.

Samuel Ingraham, the pauper, was born in that part of Colchester which is now Marlborough, and is therefore settled in Marlborough, unless he has since acquired a’settlement elsewhere; which the plaintiffs insist is the fact. The burden of proof is, therefore, on them. This supposed new settlement is said to be gained in Weybridge, in Vermont, which settlement, according to our decisions, would be of .the same effect as if acquired in a town in this state. X^ey say he removed to Weybridge many years since, and there lived and paid taxes, long enough to acquire a settlement, under the laws of Vermont. By that law, “ any person who shall inhabit in any town or place within the state, and shall, for himself or on his account, have executed any public office, &c., or shall have been charged with, and paid, his or her share of the public rates or taxes of such town or pláce, for the space of two years, shall acquire a settlement in such town or place.” On the trial, the necessary residence was proved, and not denied, and the question about the public rates or taxes was, whether the supposed rates or taxes were imposed according to law ; it being obvious, that if they were not, this requisition of the law had not been complied with, and the settlement not gained. We think the objection taken to the evidence which was received, and hence to the character of the tax and the collection of the money, as a legal tax, is well taken, and must prevail. It appears, from the statute above recited, that public taxes are laid in Vermont, much as they are laid in Connecticut. Lists are annually made and returned to the towns and general assembly, accompanied with a certificate, that the oath prescribed by law was duly taken by the list-makers. On these lists taxes are laid, by the inhabitants or communities, from time to time, as is required and voted, followed by warrants for their collection.

Now all these requisites are necessary and indispensable, for a legal tax, and they all necessarily exist- of record, and of course can be proved by the record, as the -best evidence. Secondary evidence, in this case, is not admissible in the first instance. The absence of the best and appropriate evidence creates a suspicion that the tax was not well laid, or is otherwise objectionable, or such evidence would have been forthcoming. The court received the secondary evidence, without a proper foundation being first laid for dispensing with the better and higher evidence. Herein there is error, and a new trial must be allowed.

We think that there is no error in the charge which the court gave to the jury. The request of the defendants, for particular instructions to the jury, must be taken- as one and entire. If the whole is not correct, the judge need not regard it, at all, for it is not his duty to dissect it, and select what is right and reject what is wrong. He may, if he please, pursue a different course, and comply with the request in part, and this is the course the judge pursued, in this instance. He might have been entirely silent, but he was not silent, and we need only enquire if what he did tell the jury was correct; and we think it was. He would have been wrong, had he told them, they might presume every fact necessary to find the present settlement of the pauper in Marlborough, for this is the substance of the claim. There could be ho such legal presumption, but, as matter of fact, the jury might draw such a conclusion as they pleased.

A question of estoppel was made. The plaintiffs claimed, that the question is virtually the same against the defendants as if Weybridge was the defendant in this suit, because, it is said, Weybridge could not set up, that their taxes and their collectors -and warrants were not good and effectual, since they raised, from the collectors, the moneys, and have continued to enjoy them. How this would be, if Weybridge was now sued for the support of the pauper, we have no occasion to enquire; but, as to these defendants, we think there is no force in the argument, for there is no privity, between them and Weybridge, to sustain the claim, and therefore they are not estopped by those acts, but may rightfully insist, that all the material facts in the declaration shall be proved and established by common law evidence.

We advise a new trial.

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

New trial to be granted.


source: Caselaw Access Project

author: Waite, J.

license: Public Domain

text:
    King and another vs. Woodruff and another.
    Where a tenant, under a parol agreement, has enjoyed the use of land, according to the stipulated terms of such agreement, parol evidence is admissible to prove the sum agreed to be paid therefor.
    A leased to the defendants, by parol, certain premises, at the rent .of $1,000, per arnium, for the term of one year, with the privilege of occupying the same, for five years, at the same rent, and it was agreed, as a part of the. contract of lease, that the defendants should put said premises in a proper condition for occupancy, and charge the expense to A; but there was no agreement as to tlie manner in which such expense should be paid. Having taken possession, the defendants began to make said improvements, when A died insolvent. The defendants proceeded, without the knowledge of the heirs at law of A, to make the stipulated improvements, paid the first quarter’s rent, in money, and continued to occupy, as before; said heirs not questioning the validity of the defendants’ right, nor requiring any change in the terms of occupancy, until they were sold by order of the court of probate. In an action, by the heirs of A, to recover for the use and occupation of said premises, it. was held, 1. That the law would not imply a contract between the parties, different from that under which the defendants entered and occupied said premises. 2. That the plaintiffs should be presumed to have assented to the occupancy, by the defendants, upon the terms on which the latter originally entered, and had previously occupied said premises. 3. That parol evidence was admissible, for the purpose of showing the agreement, under which the defendants entered, and the amount of rent to be paid by them. • 4. That the expense .of the improvements made by the defendants should be deducted from the amount of rent they were to pay.
    This was an action of debt on book. The cause was referred to auditors, who made their report embracing the following facts.
    George King, shortly before the first of April, 1852, leased to the defendants, a large brick store, with the lot upon which it stood, in the city of Hartford, at a rent of $1,000 per annum, for the term of one year from the said first day of April, with the privilege, on the part of the defendants, of occupying the premises, for five years, at the same rent.
    The shop had been recently. erected, and some further work was needed upon the building and lot, to put them in a suitable condition for the use of the defendants. It was thereupon agreed, between King and the defendants, as a part of the contract of lease, that the defendants should, at once, put the premises in a proper condition for occupancy, and charge the expenses to King. But there was no agreement, that such expenses should be deducted from the rent, nor in any respect, as to the manner in which they should be paid. The defendants objected to parol evidence of the lease, but the auditors admitted it.
    The defendants immediately took possession of the premises, and began to make the improvements, but before many of them had been made, King suddenly died, deeply insolvent, leaving a widow, and a daughter, his only child, the plaintiffs in this suit.
    The defendants proceeded, after the death of King, to complete the improvements, but did not consult either of the plaintiffs, in regard to them, and they had no knowledge that such improvements were being made. The defendants incurred an expense of $S264.44, in making such as were reasonable and proper, under their agreement with King, but only the sum of $118.10, in making such as were strictly necessary to make the premises tenantable.
    The defendants continued in possession until May 6th, 1852, when the premises weir?* sold by the administrator of King, under an order of probate, for the payment of the debts of King; and paid the first quarter’s rent, due' July 1st, 1852, in cash. They claimed, that the expenses incurred in malting the improvements should be allowed them in this action, and be deducted from the rent. ’
    The auditors found that, if the court should be of opinion, that no such deduction ought to be made, there was a balance of rent due the plaintiffs, amounting to the sum of $907.50; but, whether any such deduction ought to be made, and, if any, how much, was referred to the court.
    The report was made to the superior court, for Hartford county, at the April term, 1854, when it was accepted, and the court allowed the defendants the whole amount of the expenses incurred by them, in making the improvements; deducted the same from the rent found due by the auditors; and rendered judgment, in favor of the plaintiffs, for the balance.
    The plaintiffs, thereupon, filed their motion in error, and brought the case before this court, for revision.

      Welles and Fellowes, for the plaintiffs, contended,
    1. That evidence of the parol contract of lease was not admissible, and the amount of the repairs should not have been deducted from the rent.
    Independently of an actual contract, the landlord is under no obligation to repair, nor is there any implied contract, that the premises are tenantable. Taylor on Landlord and Tenant, p. 155. Sutton v. Temple, 12 Mees. & W., 52. Hart v. Windsor, 12 Mees. & W., 66. These two last cases qualify, if they do not overrule, Smith v. Marrable, 11 Mees. & W., 5.
    2. This parol contract of lease is clearly within the statute of frauds, since it relates to an interest in land, and is therefore void. Kelly v. Webster, 19 Eng. L. & Eq., 517.
    3. If the contract, so far as it relates to the repairs, is to be considered a part of the contract of lease, it is void by the statute; since, if part of an entire- contract is void, by the statute of frauds, the whole is so. Forquet v. Moore, 16 Eng. L. & Eq., 469. Mechelen v. Wallace, 7 Ad. & E., 49. Crawford v. Morrell, 8 Johns. R., 253. Van Alstine v. Wimple, 5 Cow., 162. Thayer v. Rock, 13 Wend., 53.
    4. If the contract, respecting the repairs, be not a part of the contract of lease, then it does not affect the 'land, and therefore in no way affects the plaintiffs. Rent, not accrued, belongs to the heir, not to the executor. 1 Hilliard’s Digest, p. 244, § 48. But the obligation of the personal contract to pay for the repairs, devolves on the executor, and can not be set off-against the rent. The auditors have found expressly, that there was no agreement that the expense of the repairs should be deducted from the rent.
    II. The contract is not taken out of the statute, by part performance. This is an action at law. A contract within the statute is not. taken out at law, but only if equity. Jackson v. Pierce, 2 Johns. R., 221. 2 Story’s Eq., § 1522. Eaton v. Whitaker, 18 Conn. R., 222.
    III. In regard to the claim, that the contract may be resorted to, to determine the terms of the tenancy, it is not true, that this can be done, for any purpose. It would repeal the statute of frauds. The amount of the rent stipulated, may be proved merely as an admission of the value of the occupation, and this, not only on common law principles, but also by virtue of the statute authorizing the action of assumpsit for use and occupation. It is mere evidence of that value, but is not conclusive. Taylor on Landlord and Tenant, 293. Sargent v. Ashe, 23 Maine R., 201. Tomlinson v. Day, 2 Brod. & B., 680, (6 E. C. L., 315.) But this contract for improvements has no relation to the amount of the rent, nor to the terms of the tenancy. It is an independent contract that the defendants may make improvements, and charge the expense to George King.

      R. D. Hubbard, contra, contended,
    I. That parol evidence of the lease, between George King and the defendants, was rightly admitted in evidence, by the auditors. 1. The contract, though originally within, the statute of frauds, has been executed, and thus taken put of the statute. Baxter v. Gay and wife, 14 Conn. R., 119. Eaton v. Whitaker, 18 Conn. R., 231. Seaman v. Price, 2 Bing., 437. 2. A parol lease, though void as to the duration of the tenancy, is evidence of the fact of a tenancy, and will govern, as to its terms. Doe v. Bell, 5 T. R., 471. Richardson v. Grifford, 1 A. & E., 52. Beale v. Saunders,
      3 Bing., N. C., 850. People v. Picket, 8 Cow., 226. Schuyler v. Leggett, 2 Cow., 663. De Medina v. Polson, 3 E. C. L., 31. Taylor on Landlord and Tenant, 301.
    II. That the defendants’ costs for improvements were rightly deducted from the plaintiffs’ claim for rent. The law would raise an implied agreement to set off’, from the facts found by the auditors. McLean v. McLean, 1 Conn. R., 400. This action, being made, by statute, a substitute for the action of general assumpsit, in cases of this kind, is' an equitable one in its character, and, all the equities which grow out of the ground of the action, or out of the consideration for the promise, may be used, to lessen the damage on the promise. Gunn v. Scoville, 5 Day, 113. Whenever counter claims grow out of the same contract, the court will apply one upon the other. Darwin v. Potter, 5 Denio, 306. Tone v. Brace, 8 Paige, 597. McCarty v. Shattuck, 22 Wend., 155. Batterman v. Pierce, 3 Hill, 171. Even a negotiable promissory note; in the hands of the payee, or negotiated when past due, in the hands of a third party, is subject to all the equities which grow out of the consideration of the note. Nevins v. Townsend, 6 Conn. R., 5. Robinson v. Lyman, 10 Conn. R., 31. Culver v. Parish, 21 Conn. R., 408.
    In this view of the case, the plaintiffs, on the death of George King, took this claim, subject to any equitable defence, set-off, or abatement, which grows out of the original contract of letting.
   Waite, J.

This is an action brought to recover for the use and occupation of certain real estate. Upon the trial before the auditors, it appeared, that the occupation of the defendants commenced under a parol lease from George King, then the owner of the estate, and from whom the defendants derive title, since the occupation commenced.

The defendants, for the purpose of showing the extent of their liability, offered parol evidence of their agreement with King, under which they entered and occupied-the premises. To the admission of this evidence the plaintiffs objected, but the auditors received it.

It is now claimed, by the plaintiffs, that as the agreement was a contract, relating to lands, the admission of parol evidence to prove it, was in violation of the provisions of the statute of frauds.

On the part of the defendants, it is insisted, that, as the premises had been occupied by them, and nothing remained, necessary for the fulfillment of the contract, except the payment of the stipulated rent, the evidence was proper, to show the amount of that rent, and was not within the provisions of the statute.

If the decision were to be governed by the English cases, aside from the statute of 11 Geo., 2, ch. 19, § 14, perhaps the weight of the authorities might be considered in favor of thé plaintiffs’ claim, although the opinions of the English judges have not been entirely uniform upon the subject. Corking v. Ward, 1 Man., Gran. & Scott, 858, (50 E. C. L., 858.) Price v. Leyburn, 1 Gow, 109, (5 E. C. L., 479.) De Medina v. Polson, Holt’s Cases, 47, (3 E. C. L., 21.)

The case last cited was an action for the use and Occupation of a house. The lease was by parol, and the defendants’ counsel claimed that it was void, inasmuch as it was not a lease in possession, but in reversion; and that no evidence could be received of any ingredient of a contract, which the law had declared to be void. Gibbs, C. J., said, “ The agreement is void by the statute of frauds, but I am of opinion, that you may still resort to it, to calculate the amount of rent.” ' ,

But we have no occasion to examine these authorities, because all doubts upon that subject in England have been removed by the provisions of that statute. It is there enacted, “that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements or hereditaments, held or occupied by the defendant, in an action on the' case, for the use and occupation of what was so held or enjoyed; and if, in evidence on the trial of such action, any parol demise, or any agreement (not being by deed) wherein a certain rent was reserved, shall appear, the plaintiff in such action shall not-therefore be non-suited, but may make use thereof, as an evidence of the quantum of the damages to be recovered.”

And we think the law of Connecticut, as repeatedly recognized by our courts, is in conformity with the provisions of that statute.

Previous to the passing of that statute, it was generally holden in England, that an action of assumpsit, for rent in arrear, upon a parol lease for years, could not be maintained. But, our courts, disregarding the opposing decisions of the English courts, held, that an action of indebitatus assumpsit, ¡'might be maintained, even upon an implied promise, arising from the use and occupation of real estate, by permission. And such may now be considered as the settled law in this state. Gunn v. Scoville, 4 Day, 228.

The principle has been established by numerous decisions, in this state, that, where a parol contract has been made for the transfer of real estate, at a stipulated price, and a conveyance has been made, according to the terms of the contract, an action at law may be maintained, to recover the price.'

Thus, in one of the earliest cases upon this subject, the plaintiff had sold his farm to the defendant, and gave him a deed of it, and then brought an action of assumpsit, to recover the stipulated price. The superior court said, “ The defendant has got a deed of the plaintiff’s farm, the contract has been executed on one part, which takes it out of the statute made to prevent frauds and penuries, 'The case is not within either the letter or spirit of the statute.” Case v. Tracy, 1 Root, 479. The same principle has been recognized in other cases. Clark v. Brown and wife, 1 Root, 77. Noyes v. Moor, 1 Root, 142. Sparrow v. Smith, 5 Conn. R., 117. Belden v. Seymour, 8 Conn. R., 313. Boardman v. Steele, 13 Conn. R., 559.

And in a more recent case, where an action at law was brought to recover for land conveyed, this court held, that the fulfillment of the contract on the part of the plaintiff-, in pursuance of the contract, entitled him to the sum stipulated, and that parol evidence of the contract was no t precluded by the statute. Baxter v. Gay and wife, 14 Conn. R., 122.

And, in a still later case, Hinman, J., referring to the case last cited, remarked, “We are aware of a class of cases, where one of the parties, having performed his part of the agreement, may bring a suit at law and recover the consideration promised for such performance.” Eaton v. Whitaker, 18 Conn. R., 231.

And, in another case, this court held, that parol testimony was admissible, for the purpose of showing, that the consideration for the sale of real estate was different from that expressed in the deed, and, what, in fact, was the true consideration. Meeker v. Meeker, 16 Conn. R., 387.

Now, if parol evidence is admissible, to prove the price agreed to be paid for the sale of land, after the conveyance has been made, it is difficult to see, upon what principle it can be said, that similar evidence is not admissible, to prove the sum agreed to be paid for the use of land, after the tenant has enjoyed that use, according to the terms of the agreement.

Were it otherwise, the statute, instead of operating for the prevention of fraud, might be converted into an instrument for its protection. If a tenant, after having occupied property, under a parol demise, can turn around, and say to his landlord, You can not recover the rent, for I object to any parol evidence of my agreement to pay it, it might well justify a remark made by Chief Justice Best, in a similar case when he said, “ This is one of the most iniquitous objections ever made.” Seago v. Deane, 4 Bing., 459, (15 E. C. L., 39.)

But again, the plaintiffs’ action is founded upon a contract, and they can not recover, unless they prove a contract on the part of the defendants, either express or implied. Birch v. Wright, 1 T. R., 387. Boston v. Binney, 1 Pick., 1. Strahan v. Smith, 4 Bing., 91, (13 E. C. L., 255.) And, if the defendants entered and occupied, under an expressed contract, the law will imply no other. If the agreement was, that they should pay $1,000 a year rent, the law will not imply an agreement to pay $1,500, although in the opinion of respectable witnesses, the latter sum might be considered a fair rent.

“ A .landlord,” says Bayly, J., “ suing for rent, must proceed, either upon an express contract made with the tenant, or upon a contract which the law will imply, from the relation subsisting between them.” Hull v. Burgess, 5 B. & C., 232, (11 E. C. L., 246.) And again, “Where there is an express contract between the parties, none can be implied.” Greniman v. Legge, 4 B. & C., 324, (15 E. C. L., 229.) And Maulé, J., in the case of Berrey v. Bindley, said, “ If a party enter under an invalid agreement, or under an agreement not amounting to a demise, he shall still hold, subject to the terms of that agreement, so far as they are not at variance with the species of tenancy, which the law under the circumstances creates.” 3 Man. & Gran. 514, (42 E. C. L., 271.)

We are satisfied, therefore, that the auditors are right, in admitting parol evidence, to prove the agreement under which the defendants entered.

2. But it is said, the superior court erred in deducting the expenses of the improvements from the amount of rent. And this depends upon the construction of the agreement, respecting the mode of paying for those expenses. If that was distinct and independent of the demise, then the decision is wrong.

But the auditors have found, that this agreement was a part of the contract of lease, and, although there was no express stipulation, as to the mode of payment, yet it is obvious that it must have been the understanding of the parties, that these expenses were to be charged, as part payment of the rent, and consequently the defendants were properly charged with only the balance.

' The plaintiffs, having suffered the defendants, after the death of the lessor, the original owner, to continue their occupation as before, without questioning the validity of their title, or requiring any change of terms, must be considered as having assented to their occupying, upon the terms on which they had entered and had previously occupied. At any rate, none other are proved, and the law will imply no other.

We are, therefore, of opinion, that there is no error in the judgment complained of.

In this opinion, the other judges concurred, except Church, C. J., who was disqualified, and Storrs, J., who was absent.

Judgment affirmed.


text:
    Bunnell vs. Butler.
    Ill an action of assumpsit, the defendant, under his plea of set-off, introduced, in evidence, the plaintiff’s promissory note, given for several items of indebtedness, part of which had been paid. The plaintiff resisted a set-oil' of the unpaid balance, on the grounds, that such note was without consideration, and was obtained by duress. The defendant denied that said note was without consideration; and as to duress, claimed a subsequent ratification of the note. Held, that it was competent for the plaintiff to show, that such note was giyen without consideration, and, if it was so given, that it was immaterial, whether it was or was not procured by duress, or was or was not subsequently ratified.
    Where, in such action, the court instructed the jury to find, whether anything was due upon the items of indebtedness, for which such note was given, and to allow tlie defendant whatever was so due to him ; it was held, that such instruction was correct.
    The court may, at its discretion, limit the number of impeaching witnesses, to be improved on the trial of a cause.
    The proper exercise of such discretion is no ground of error..
    This was an action upon a promissory note, tried before the superior court, at Hartford, at the January term, 1854.
    On the trial to the jury, the defendant, under his plea of set-off, introduced in evidence, a promissory note, executed by the plaintiff and two others, for the sum of $824.06, payable to the defendant, upon which he claimed more was due him, than he owed the plaintiff, and that he had a right to recover the balance.
    The set-off was resisted by the plaintiff, .upon two grounds. First, that the note was obtained by duress, and secondly, that, as to the balance remaining unpaid, it was without consideration.
    The defendant claimed, that if the note had been obtained by duress, it had subsequently .been confirmed by the plaintiff, by the payment of a part of the same, and a tender of another portion.
    Upon the question, relating to the consideration of the note, it was admitted by the parties, that it was given for several different items of indebtedness, claimed by the defendant to be due to him, all of which were admitted to be correct, with the exception of two, being one-half of two notes of $268 and $200, and in respect to these, the plaintiff denied, that he ever, on account of them, was indebted to the plaintiff. It was further admitted, that the plaintiff' had paid, and caused to be endorsed upon the note, an amount equal to all the other items, embraced in the note.
    The plaintiff’ thereupon claimed, that, whether the note had been obtained by duress or not, or had or had not been subsequently confirmed by him, it was, as to the balance remaining unpaid, without consideration, and furnished no ground for a recovery against him. And upon the question, relating to the consideration of the note, much evidence was introduced by the parties, and the court submitted it to the jury, with instructions to find, whether anything was due from the plaintiff to the defendant, upon the items of indebtedness for which the note was given, and if anything, how much; and to allow the defendant, whatever sums they should find due to him.
    . Upon the trial, Warren G. Bunnell was introduced as a witness, by the plaintiff, and testified in his behalf. The defendant called witnesses to impeach the general character of Bunnell, for truth. When the first impeaching witness Was called, the court limited the number of such witnesses to six, upon each side. The defendant offered more, and claimed a right to examine them, but their testimony was not received.
    The jury having returned their verdict in favor of the plaintiff, the defendant moved for a new trial, claiming that the judge on the circuit erred in his instructions to the jury, upon the subjects of duress and confirmation, and in limiting the number of impeaching witnesses; and the questions of law were reserved for the advice of this court. But, as the court, in its opinion, has not taken into consideration these instructions, the facts, in the case, upon which they were given, are now detailed.

      Welles and Pardee, in support of the motion.

      Cornwall, contra.
   Waite, J.

Upon the trial of this case, in the court below, the only defence made, was a right to set off against the plaintiff’s demand, a balance claimed to be due upon a certain promissory note.

This defence was resisted upon two grounds : in the first place, that the note was void by reason of duress, and secondly, that the balance upon it remaining unpaid, was without consideration, and consequently, that there was no indebtedness upon it, from the plaintiff to the defendant.

The defendant denied that there had been any diwess, or that there was any want of consideration, and claimed that, if the note had originally been executed under duress, it had been subsequently confirmed, by several acts of the defendant.

We deem it entirely unnecessary to go into an enquiry, respecting the claims of the parties, upon the matters of duress and confirmation, as we are satisfied that, aside from these considerations, the defendant is not entitled to a new trial.

It was admitted by the parties, that the only consideration for the note, was certain items of indebtedness, upon which, as the defendant claimed, the plaintiff was indebted to him. The plaintiff denied any indebtedness, upon two of them, amounting together, to a sum equal to the balance remaining unpaid upon the note.

Now it is evident, that, if this claim of the plaintiff’ was well founded, there was no indebtedness on his part, and nothing to set off against his demand, and it was perfectly immaterial, whether the note was originally procured by duress, or had subsequently been confirmed by the plaintiff.

It was competent for the plaintiff to show a want of consideration for the note, and if he succeeded in establishing that fact, then no recovery could be had against him, upon it. Raymond v. Selleck, 10 Conn. R., 482. ,

On the other hand, if the note were given for a preexisting debt, that indebtedness would remain unaffected by the subsequent execution of, the note, whether it was obtained by duress or not, or whether there had or had not been any confirmation of the note. And if the defendant, by reason of duress, were precluded from setting off the note, he was not precluded from setting off the original debt, if there were any, which entered into the consideration of the note. Bill v. Porter, &c., 9 Conn. R., 23. Fitch v. Bogue, &c., 19 Conn. R., 291.

Now the question, «whether the plaintiff was indebted to the defendant, in the manner claimed by him, was distinctly submitted to the jury, and found in favor of the plaintiff, and 'no complaint is made, that the question was not properly made or fairly -submitted. If that question has been correctly determined, then it is immaterial, whether the defendant attempted to set off the note or the original indebtedness. In neither case can his defence prevail.

2. In the next place, it is claimed that the court erred, in limiting the number of impeaching witnesses. This, however, was a matter within the discretion of the court. It would be absurd to hold, that, upon an enquiry of that sort, depending, in a great measure, upon the opinion of witnesses, a party has the right to examine as many as he pleases, and that the court and jury are bound to sit and hear them, without any power to interfere.

There must necessarily be a limit to such enquiries, and it is for the court to prescribe it. "We are not, however, to be understood, as saying, that in all cases, the number of impeaching witnesses is to be the same, as that allowed in the present case. Ordinarily that number ought to be deemed sufficient to enable the triers to pass upon the credit of the principal witness. Much, however, will depend upon the circumstances of the case, and the importance of his testimony. If it should appear, that the case would probably turn upon the degree of credit to be given to it, a more extended enquiry, as to his character for truth, might properly be allowed.

On the other hand, if his testimony should be unimportant, having little or no effect upon the merits of the case, but little time ought to be consumed in such an enquiry.

Nor do we mean to say that, if it should be made to appear that, in consequence of such an order, a party has manifestly suffered by it, this court will not grant a new trial. But, in the present case, we discover nothing indicating that the discretion of the court was not fairly and properly exercised.

For these reasons, we do not advise- a new trial.

In this opinion the other judges concurred, except Storrs, J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.


author: Storrs, J.

text:
    Ashmead and others vs. Kellogg.
    Where personal property, mortgaged to secure the payment of a debt payable on demand, is left in the possession of the mortgagee, an unqualified sale by him> not merely of his interest in the equity of redemption, but of the entire property, for his own benefit, is a wrongful conversion, for which trover will lie.

      Oviatt v. Sage, 7 Conn. R., 95, commented on.
    A mortgage of a vessel, by the defendant to the plaintiffs, contained a condition that, if the defendant should pay the plaintiffs $3,000, with interest, without specifying any particular time for such payment, such mortgage should be void, and also a stipulation, that, until default should be made in the payment thereof, the defendant should remainin the possession and enjoyment of the property mortgaged, and that, in case of such default, it should be lawful for the plaintiffs to take possession, and dispose of it, paying said sum from the proceeds, and rendering to the defendant the surplus, if any. The vessel being in the possession of the defendant was sold by him, as unencumbered, for his own use and benefit, said mortgage debt remaining unpaid. In an action of trover, for said vessel, brought against the mortgagor, by the mortgagees, it was held, 1. That the money mentioned in such condition, was not payable immediately, but on request, and, therefore, that there was no breach of the stipulation for the continued possession and use of the property, by the defendant, and the resumption of it, by the plaintiffs, until after a demand and non-payment thereon, or som e act 'equivalent thereto. 2. That such stipulation was not a mere covenant, the only remedy for a violation of which was an action of covenant. 3. That it was not a mere bailment by the mortgagee of the property, at the will of either of the parties. 4. That such stipulation in effect was equivalent to a grant or demise of the property to the mortgagor, for an indefinite time, defeasible on the payment of the money upon request, and that a sale of the entire property, by the mortgagor, for his own benefit, was a forfeiture of the right of possession and vested the same in the mortgagees, and constituted a sufficient title to enable the latter to maintain trover for said vessel immediately on such sale.

      This was an action of trover, for a schooner, called the General Morgan, tried by the jury, at the term of the superior court for Hartford county, holden in September, 1853.
    On the trial, the plaintiffs gave in evidence a mortgage deed of said schooner, admitted to have been executed by the defendant, and delivered to the plaintiffs, to which the following condition and stipulations were annexed: “ If I shall and do well and truly pay unto the said parties of the second part, their executors, administrators, or assigns, the just and full sum of three thousand dollars, lawful money of the United States of America, with interest thereon, at the rate of seven per centum per annum, payable yearly, (it being hereby understood and agreed by and between the parties hereto, that, in case of loss or damage sustained by said vessel by reason of the dangers of the sea, then the said parties of the second part are hereby authorized to receive, from the insurance companies in which said vessel is insured, a proportional amount of the said $3,000 now due, in order to secure this mortgage,) then these presents shall be void. And I, the said party of the first part, for myself, my executors, administrators and assigns, do covenant and agree, to and with the said parties of the second part, their executors, administrators and assigns, that, in case default shall be made in payment of the said sum above mentioned, then it shall and may be lawful for, and I, the said party of the first part, do hereby authorize and empower, the said parties of the second part, their executors, administrators and assigns, with the aid and assistance of any person or persons, to enter my dwelling-house, store, and other premises, and such other place or places as the said goods or chattels are or may be placed, and take and carry away the said goods and chattels, and to sell and dispose of the same, for the best price they can obtain ; and out of the money arising therefrom, to retain and pay the said sum above mentioned, and all charges touching the same, rendering the overplus (if any) unto me or my executors, administrators, or assigns. And until default be made in the payment of the said sum of money, I am to remain and- continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. In witness whereof,” &c.
    It was proved that, at the time, or just previous to the execution and delivery of said mortgage deed, the defendant received a bill of sale of said vessel, from the builder and owner, and thereby acquired a legal title; that the vessel was purchased for $11,000, which was paid by a company of persons, embracing the plaintiffs, the defendant and others, united as a corporate body, under the laws of this state, by the name of the Connecticut Mining and Trading Company; that said- vessel was contracted for by said company, and purchased for the use of said company, many of its members being, at the time, with their officers, and the defendant, their president, in the city of New York, ready to sail in said vessel, for California; that the title of said vessel was registered in the custom-house of New York, in the name of said Kellogg, (who swore, that he was owner thereof,) because the custom-house could not admit the title or ownership of a' vessel to be in an incorporated company.
    It was further proved, that said company had contracted debts, in purchasing goods, to a considerable amount, and that there were difficulties in getting the vessel away from New York, until said creditors were satisfied; whereupon it was agreed, between the plaintiffs on the one part, and said president, directors and officers and several others on the other part, stockholders in said company, who had full authority therefor, that, if the plaintiffs would advance the sum of $3,000, to enable "the company to proceed on their voyage, they should be secured upon said vessel, by the mortgage aforesaid, to which they agreed; and said mortgage was accordingly executed for said purpose, and the plaintiffs advanced said $3,000, as expressed in the condition and upon the terms stated in said deed.
    It further appeared, that, immediately after the execution of said mortgage deed, the defendant and others, the directors and members of said company, sailed in said vessel from New York to California, the vessel being under the direction and control of the company and the captain, who was appointed by said company. Said vessel reached California, in the early part of August following, where said company proceeded and continued to use said vessel, in one or more of the rivers of that state, until in the latter part of the month of November following, when the defendant purchased said vessel of said company, and the entire interest in said vessel, for the sum of $12,000, which, the defendant claimed, was duly paid to said company.
    It was further proved, that the defendant, upon said sale to him, took possession of the vessel, as his entire property, and for a short time used the same, appropriating it to his exclusive benefit, and thereafter made sale of the entire interest of said vessel, as unincumbered, to one Brannon, for the sum of $14,000, which the defendant has retained as his own.
    The defendant further claimed, that all he did in New York and in California, touching said vessel and the title and use of the same, up to the time of his purchase of the same, he did in the character of a trustee for said company, and therefore, in buying said property for himself, and in using and selling the same, he was not guilty of any conversion of said vessel, and was not liable in the present action, and requested the court to instruct the jury, that, upon the facts above admitted, and claimed to be proved by the defendant, he could not be liable. The court did not so instruct the jury, but informed them, that, upon the facts, if they were true, as admitted, the defendant had been guilty of a conversion, and was liable in said action, unless there was something more in the case.
    The defendant further claimed, that he had paid the amount of said mortgage debt, to the plaintiffs; who denied ever having received the same.

      The jury having returned a verdict for the plaintiffs, the defendant moved for a new trial.

      Welles and Chapman, in support of the motion, contended,
    1. That, upon the facts claimed by the defendant to have been proved, upon the trial, the action of trover could not be maintained; because, the possession of the defendant was lawful, and according to the terms of the mortgage; and this possession had not been terminated, by a demand of the mortgage debt and a refusal by the defendant.
    2. That the sale of the vessel, by the defendant, was not a conversion. To constitute this, there must be a destruction of the plaintiffs’ property, and neither the defendant nor the company could destroy the plaintiffs’ title, by a sale. Oviatt v. Sage, 7 Conn. R., 95. 4 East, 110.

      Hungerford and Fellowes, contra, contended,
    1. That the plaintiffs had rightfully recovered a judgment, for the amount of their debt and interest, secured by a mortgage upon the vessel, if they had a right to recover at all. Chamberlain v. Shaw, 18 Pick., 278. White v. Webb, 15 Conn. R., 302.
    2. That the defendant was liable for a conversion, by using and selling the vessel in the manner he did. Ripley v. Dolbear, 6 Shep., 382. Whipple v. Gilpatrick, 1 App., 427. Grant v. King, 14 Verm., 367. Barry v. Bennet, 7 Met., 354. White v. Webb, 15 Conn. R., 302. White v. Phelps, 12 N. H., 382. Murray v. Burling, 10 Johns., 172.
   Storrs, J.

On the facts appearing in this case, two points have been presented. First, whether the plaintiffs had a sufficient title to the property in question, to maintain this action; and secondly, whether there was a wrongful conversion of it, by the defendant, to his own use.

Respecting the latter of these questions, it is too obvious to require argument, that, if the plaintiffs had a sufficient title to the property, when it was sold by the defendant, such sale constituted a wrongful conversion of it, by the latter. It was an unauthorized deprivation of the plaintiffs of their property, and a direct -appropriation of it, by the defendant, to his own use. It is true, as stated by the defendant, that the plaintiffs did not, by such sale, lose their title to the property, and might have reclaimed it, if they had elected to do so, in the hands of the purchaser from the defendant, or those into whose hands it might afterwards come ; but they were not bound to do this, and had a right to resort immediately to the defendant, by whose means they had been wrongfully deprived of it. It is scarcely necessary to say, that the wrongful conversion of property, which is sufficient to sustain the action of trover, does not necessarily imply its destruction or even its removal, so that the owner cannot retake it. If the defendant had merely disposed of his own interest in the property, and sold it, subject to the encumbrance of the mortgage of it to the plaintiffs, there would have been no interference with the rights of the plaintiffs: but here the defendant assumed to sell the entire vessel, as unincumbered, and retained the proceeds as his own, which was a clear invasion of the rights of the plaintiffs, and a wrongful conversion of their property, by the defendant, to his own use. The defendant has endeavored to assimilate the present to the case of a sale, by one tenant in common, of personal property, of not only his own share, but also that of his co-tenants, without their authority : in which case it is claimed, ón the authority of Oviatt v. Sage, 7 Conn. R., 95, that, in order to constitute a conversion of the property, there must be a destruction of it, and that such sale does not amount to a destruction of it. That case, however, is not applicable to the present. It did not necessarily involve the enquiry, whether such a sale would be equivalent to the destruction of the share of the co-tenants, and therefore constitute a conversion of it, and it may well be doubted whether .the court intended to express an opinion that it would not be. It may be remarked, that the cases elsewhere adopt the principle, that a sale of the entire property, by one tenant in common, amounts to the conversion of the interest of his co-tenants. But, whatever may be the doctrine, in regard to the effect of a sale by a tenant in common, of the whole of the common property, it is sufficient to say, that there is no resemblance or analogy between such a case and the present. There was no common or joint interest in the property here in question, between the plaintiffs and the defendant. The interest of the plaintiffs was that of mortgagees, and that of the defendant, of a mortgagor; and the interest of the former was wholly distinct, and different from, that of the latter. There was no connection between them, in this respect.

The remaining question is, whether the plaintiffs, at the time of the conversion, had a sufficient title to the property, to maintain this action. It is claimed by them, that they then had a present or immediate right of possession to the property; and it is justly conceded, that such a right constitutes a sufficient title. Whether the plaintiffs, then, had such a title, depends on the construction and effect of the condition of the mortgage to them from the defendant: and the question is, how far, by the terms of that condition, the plaintiffs were divested of the absolute and unqualified right of possession, to which they would, but for that condition, 'have been entitled, by virtue of the general ownership of the property conveyed to them by the mortgage. That condition is, that the defendant should pay to the plaintiffs, the sum therein mentioned, with interest, without specifying any particular time for the payment of the same, and provides further, that, until default should be made in the payment thereof, the defendant should remain in the quiet and peaceable possession, and the full and free enjoyment of the property mortgaged, and that, in case of such default, it should be,lawful for the plaintiffs to take possession of it, and dispose of it, paying said sum from the avails, and rendering the surplus, if any, to the defendant. The plaintiffs claim, that, as no time is specified for the payment of said sum, it was payable immediately on the execution of the mortgage, and that, it not being then paid, there was a breach of the condition, immediately, which terminated the defendant’s right to the possession of the property. We do not accede to this claim, because such a construction would be manifestly unreasonable and inconsistent with the intention of the parties, as evinced by the terms of the condition, the provision respecting the continued possession and use of the property, by the defendant, and the resumption of it by the plaintiffs; but we consider the sum to be payable, on request, and that, until such request, there would be no such default as was contemplated, and consequently, -no breach of the condition, or forfeiture of the defendant’s right of possession. Nor do we view the stipulation in the light of a mere covenant, on the part of the defendant, for the breach of which the remedy of the plaintiffs would be by an action against the defendant. Neither do we think that the effect of that stipulation was to create abatement by the plaintiffs, to the defendant, of the property, during the will of either of them; although it was indeed competent for the plaintiffs, to request payment of the sum, which the mortgage was given to secure, at any time when they should choose, and on non-payment,.the condition would be broken, and the possessory right of the plaintiffs to the property, would thereupon immediately revert to the plaintiffs : but this would be so, rather in consequence of the non-payment of the money, than of a direct determination, by an expression of the will of the plaintiffs, of a term for which the defendant held the use of the property, and the right of the plaintiffs to the possession might be defeated by the defendant’s compliance with the condition, in paying said sum, on such request. But we consider the effect of that stipulation to be the same as if the plaintiffs had made a grant or demise of the property to the defendant, until a default in the payment of said sum on the plaintiffs’ request, and defeasible on such default, and which would, of course, vest a right to the possession of the property in the defendant, during said period, and such right would continue, by virtue of said agreement, until it should be defeated by a breach of said condition, by the defendant, or otherwise forfeited by him. During said term, he would have a right to use the property in the manner, and for the purposes, for which such use was granted. But he would have no right to appropriate it for another and different use, and if he should do so, we think that such appropriation would amount to a wrongful conversion of it, which would deprive him of the right of possession conferred by the stipulation in the condition of the mortgage, and revest it in the plaintiffs. The plaintiffs claim, that the sale of the property, by the defendant, in this instance, constituted such a misappropriation and conversion, and we are of that opinion. It could not be doubted, that a destruction of it by the defendant, during the limited period during which he was entitled to its use, would be a conversion of it, for which the plaintiffs might immediately maintain an action of trover, and we think, that a sale was equivalent to a destruction of it, as between these parties. It may indeed, after such sale, have remained in specie, but it is not for the defendant to insist, that the plaintiffs should follow it, in the hands of the purchaser. The plaintiffs may treat it as if it were lost or destroyed. The sale of it, moreover, by the defendant, was an act of disloyalty to the plaintiffs, and a disclaimer, by him, of their title, and of his holding it under them, and should, in reason and justice, be attended with the same effect of forfeiting his interest in it, as a tenant or lessee, as would follow a similar act of disclaimer or renunciation, by a lessee of real estate. The views which we have expressed, as to the effect of the sale of the property, are fully sustained both by the American and English authorities. See Fenn et al. v. Bittlestone et al., 8 Eng. Law & Eq. R., 482, and cases cited. White v. Phelps, 12 N. H. R., 382. 14 Verm. R., 367, and the cases cited by the plaintiff.

We think, therefore, that a new trial should not be granted.

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

New trial not to be granted.


text:
    Goodrich and others vs. Stanley.
    Where the decree of a court of chancery, on a bill of foreclosure, ordered the defendant to pay an amount greater than that which appeared, by the finding of the court upon which such decree was founded, to be due upon the mortgage debt, or be foreclosed; it was held, that such decree was erroneous, and ought to be reversed.
    Where a negotiable promissory note, secured by a mortgage, has been assigned by' the payee, for a valuable consideration, when over due, and the maker notified of such assignment, such note becomes in equity, payable to the assignee, and n.o subsequent payment, by the maker to the payee, can effect the rights of the assignee, nor can any subsequent indebtedness, from the maker to the payee, be set off against said note.
    On a bill of foreclosure, by such assignee, parol evidence of an agreement between the maker and payee, that such note should be paid in labor, and not in money, made before and at the time of the execution of the note, is not admissible, to vary the legal effect of the note, or to vary the rights of such assignee, but is admissible, to prove the application of services performed by the defendant for the payee, under such agreement, as payment of such note ; and also to prove such services, as a distinct ground of indebtedness.
    A mere consent of the payee, to receive payment of such note in labor, instead of money, without any agreement on the part of the maker, so to pay, given after the execution of the note, and before such transfer and notice, and of which the assignee has no knowledge, at the time of the transfer, does not affect the rights of the latter.
    This was a bill in chancery, brought to the superior court in the county of Hartford, to foreclose certain mortgaged premises. The cause was referred to a committee, whose report embraced the following facts, to wit:

      On the 26th day of October,' 1837, Goodrich, one of the original defendants, was indebted to Samuel Booth, by note, dated the 25th day of October, in that year, in the sum of $453.50, payable on demand, with lawful interest, and to secure the payment of the same, mortgaged to Booth certain real estate, situated in New Britain.
    On the 21st day of July, 1838, Booth assigned the mortgage to the plaintiff, and notice of the assignment was given to Goodrich, in the month of November following. The interest on the note was paid and endorsed to the 25th day of January, 1840, and on the 5th of February following, a payment of $50 was made and endorsed upon- the note. These payments, amounting to $111.22, were due from Booth to Goodrich, for work and labor performed, under the contract herein after mentioned, and the endorsements were made by Booth, with the consent of the plaintiff.
    Although the transfer of the mortgage was, in form, absolute, yet it was, in fact, conditional, made to secure certain debts due from Booth, and certain liabilities assumed by the plaintiff, and together amounted, on the 27th of September, 1853, to $749.50. ■ The value of the mortgaged premises was $900.
    The defendants offered parol evidence, to prove the following facts, which the committee found to be true, if parol evidence were admissible to prove the same..
    In the year 1836, Booth entered into an agreement to build a house for Goodrich, and receive payment in the labor of Goodrich, who was a blacksmith. Booth built the house, and received, in the labor of Goodrich, about $600, and the note and mortgage were given for the balance, due upon that agreement, with the understanding, that the note was to be paid in Goodrich’s labor, according to the original agreement. After the execution of the note, and after the assignment, as well as before, Booth agreed that, if Goodrich would labor for him, he would apply the value, as fast as the services were performed, in part payment of the note. In pursuance of, this arrangement, Goodrich continued to perform labor for Booth, and deliver him articles manufactured by himself, which Booth agreed to endorse and apply on the note.
    The amount of the labor and goods thus furnished, at the time of the assignment of the note, was $42.55; at the time notice of the assignment was given, $61.61 more; and on the first day of May, 1851, the whole amount was $876.86. Booth failed in 1839, and died insolvent in 1846. The plaintiff had no knowledge of the parol agreement, and when notice of the assignment was given to Goodrich, he made no claim, in regard to it.
    Goodrich and the administrator upon the estate of Booth were made defendants, and after the report of the committee, and before the decree was passed, Goodrich also died, and the administrator upon his estate, and his widow and heirs, were made defendants.
    The committee found the amount due upon the note of Goodrich, including interest, on the 27th day of September, 1853, to be $845.27. .
    The cause came on for trial, at the April term, 1854. The defendants claimed, that the note had been paid by the services of Goodrich, and, if not paid, the amount of his claim ought to be set off against the note. The court accepted the report, and found the facts therein stated to be true, but, being of opinion, that the parol agreement, as found by the committee, ,was not legally admissible to affect the interest of the plaintiff, passed a decree that, unless the defendants should pay to the plaintiff the sum of $749.80, being the amount due to him from Booth, with the interest thereon, from September, 1853, and the costs on the petition, on or before the first Monday in January, 1855, they should be foreclosed.
    The defendants, thereupon, filed their motion in error, and the case was brought before this court.

      Welles and Fellowes, for the plaintiffs in error, contended,
    1. That parol evidence was admissible, to prove the subsequent parol agreement. Cowen & Hill’s notes to Phillips on Ev., Part II., vol. 3, p. 1461; also, p. 1477. Ward v. Winship, 12 Mass. R., 481. Eaves v. Henderson, 17 Wend., 190. Dearborn v. Cross, 7 Cow., 50. Bailey v. Johnson, 9 Cow., 115, 118. Robinson v. Batchelder, 4 N. Hamp., 40. Low v. Treadwell, 3 Fairfield, 441. Richardson v. Hooper, 13 Pick., 446. Cummings et al. v. Arnold et al., 3 Met., 486. Hall v. Sage, 5 Day, 428. Raymond v. Smith, 5 Conn. R., 556. Chitty on Con., 89. Vicary v. Moore, 2 Watts, 451. Crossman v. Fuller, 17 Pick., 271.
    2. That, the agreement, being proved, would be a complete defence to this suit, if Booth were the plaintiff. The parol agreement may be considered as changing the original contract into one payable in labor, so as to require an averment of request and refusal, before suit, or it may be considered in the light of an accord and satisfaction of the original contract. Chitty on Con., 589, and the cases there cited. 1 Com. Dig., Accord—B., 4. 3 B. & A., 701, (23 E. C. L., 16.) In equity, this agreement attaches to the note, and furnishes a complete defence. Robinson v. Lyman, 10 Conn. R., 30. Stedman v. Jilson, 10 Conn. R., 55.
    3. That Stanley, the assignee of Booth, stands in the same position as the assignor, and is bound by all the equities existing between him and Goodrich. Mangles v. Dixon, 18 Eng. L. & Eq., 82. 1 Hilliard on Mortgages, 362. Coote on Mortgages, 31. The title of Stanley is merely equitable, Brush v. Curtis, 4 Conn. R., 314.
    4. That the decree was erroneous, in ordering the defendants to pay more than was due upon the note of Goodrich, at the date of the notice.

      T. C. Perkins, contra, contended,
    1. That the parol testimony offered by the defendants, was inadmissible to affect the assignee. The writing can not be varied, by parol evidence of what took place previously to, or cotemporaneously with, the execution of the note, or subsequently thereto. For there was no consideration for the agreement attempted to be proved thereby, and the plaintiff had no knowledge of the same.

      2. That, after the. assignment of the note and notice, payment to the maker could not affect the assignee.
    3. That the court will not act upon mere error in computation. 1 Sw. Dig., 790; 6 Mass. R., 772; 11 Wend., 481; 18 Wend., 329; U. S. Dig., vol. 4, 635.
   Waite, J.

The decree, in this case, is, that unless the defendants pay to the plaintiff the sum of $749.80, with the interest thereon from the 27th day of September, 1853, being the amount due from the estate of Booth to the plaintiff, the defendants shall be foreclosed of all right to redeem the mortgaged premises.

If that amount was also due upon the mortgage, then the decree in respect to the debt, is right. But, if the heirs of Goodrich are required to pay more than is due upon the mortgage, or forfeit their interest in the property, then the decree is erroneous.

Our statute provides, that “courts of equity shall cause the facts on which they found their decrees to appear of record.” Statutes, ed. 1849, p. 337. Hence, in this case, by our practice, a writ of error will lie, to reverse a decree of a court of equity, as well as a judgment of a court of law.

We must, therefore, look to the finding of the court, to see whether enough is there found, to justify a decree for the payment of that sum, by the heirs of Goodrich. It there appears, that Goodrich had paid, upon the note, by his labor, before the assignment, $42.55, and before notice of the transfer, $61.61 more, making together, $104.16.

These sums, it is admitted, on the part of the plaintiff, ought to be applied, in part payment of the note, and this, as he claims, has been done, inasmuch as they must have been included in the sums actually endorsed upon the note. But this is denied by the defendants.

It is, indeed, found, that the sums'endorsed were for the services of Goodrich, under the parol agreement with Booth; but when they were performed, does not appear, and it is not found that they embrace the two other items. There is no correspondence between them, either in date or amount, and nothing to justify us in saying, that the latter were embraced in the former.

Again, it is found, that, on the 27th of September, 1853, there was due upon the note, the sum of $845.27. If a true description of the note and endorsements is given, it is impossible to see how that result can be obtained, upon any principles. And this is admitted. There is, therefore, evidently, a mistake somewhere. But even if the amount has been correctly computed, and the two items of $104.16, have not been allowed, the balance, after their allowance, will not be sufficient to justify the decree.

Under these circumstances, we are inclined to think enough has not been found, to authorize the decree, and that justice requires, that the case should be sent back to.the superior court, that the necessary corrections may be made.

As the decree, for the reasons already stated, must be reversed, it will perhaps be unnecessary for us to examine the other objections urged against it, with the exception of one, principally relied upon, in the argument, and which may be material, in the final disposition of the case.

The defendants claim, that the note has been paid by the services rendered by Goodrich, under the parol agreement, and if not so paid, they have a right to set them off against the balance due on the note. This claim would be well founded, had there been no transfer of the note, as the report shows, that the value of those services is greater than the amount due on the note, and that Goodrich has fulfilled his contract with Booth, and, of course, no suit could now be maintained in favor of the representative of Booth.

And as the note, although negotiable in form, was due at the time of the transfer, the plaintiff took it, subject to all the payments and equities, to which it was liable in the hands of the payee. Robinson v. Lyman, 10 Conn. R., 34.

Although the parol agreement made before, and at the time of, the execution of the note, can not be received to vary or alter its legal effect, to show that it was payable in work, and not in money, yet it is admissible, for the purpose of showing the application of the services performed under it,—whether they were received in part payment of the note, or were intended to create a distinct indebtedness.

But, after the transfer and notice to Goodrich, the note became, in equity, due and payable to the plaintiff, and no subsequent payment made to Booth would affect his rights; nor can any set-off of a debt due from Booth be made.

It is however said, the agreement, made subsequent to the execution of the note, and before the transfer, changed the contract, and made it one payable in labor. We do not so understand the agreement. It is but the consent of Booth to receive payment in labor, instead of money; and so far as it has been executed on the part of Goodrich, it is binding upon Booth.

But, as the plaintiff is a bona fide assignee of the note, for valuable consideration, without any knowledge of the parol agreement, his rights are unaffected by it, so far as it remained executory, at the time notice of the assignment was given.

We have been told, in the argument, that there is a strong and imposing equity, in favor of these defendants; that Goodrich has paid the full amount of the debt, according to the original agreement of the parties; that the debt was assigned as mere collateral security, and the plaintiff omitted, for several months, to give the debtor any notice of the assignment, and after it was' given, he permitted the assignee to make endorsements upon the note, for labor performed, under the original agreement; that he subsequently lay by, for a period of more than twelve years, without making any claim upon Goodrich; and now, after Goodrich has paid the full amount to Booth, and Booth has died insolvent, he is attempting to enforce payment, a second time.

These circumstances, certainly, have a tendency to awaken suspicion that all is not right, and were proper for the consideration of the committee, when enquiring into the facts in the case,—but can have no effect upon the legal questions.

The decree of the superior court must, therefore,' be reversed.

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

Decree reversed.