text:
    Johnson and another against The Connecticut Bank.
    Fairfield,
    June, 1851.
    Though the legal title to personal property, on the death of the owner, vests in his legal representatives, who are accountable therefor to the creditors and legatees; yet where a testator gave to his wife by his will, one-half of his personal property, with permission to take his household furniture, at a specified valuation; it was held, 1. that this provision made for the wife, being beneficial to her, her assent would be presumed until the contrary was shewn; 2. that the title to her share of the property being thus perfected in her, it was rendered liable to be taken on execution for the payment of her debts.
    Circumstances furnishing evidence of assent.
    The interest of A in personal property, held by her jointly with others, may be taken on an execution against her.
    If personal property legally vested in executors be taken on an execution against a third person, such executors have adequate remedy at law, in an action of trespass or trover; consequently, a bill in chancery founded on such taking, is not sustainable.
    Where executors claiming certain property, resorted to a court of chancery to restrain certain creditors from taking it, on the ground that it was needed for the payment of the debts of their testator; and it was not shewn, that it was in fact so needed, but the reverse appeared; it was held, 1. that the plaintiffs were not entitled to the relief sought; 2. that if the fact were otherwise, still, in the absence of insolvency, the remedy would be at law.
    Where the plaintiffs in a bill in chancery sought to restrain the defendants from taking and selling on execution specific articles of property, on the ground that they consisted of family relies, family pictures and gifts from deceased friends, of great interest and value to the plaintiffs; and it was found, that the only articles within that description of property, which had been levied upon, were four ottomans, four vases, a solar lamp and a china tea set, which articles had been given, in the life-time of the testator, to his wife, (now his widow,) by friends and relatives, as family presents; she was not a party to the suit; and the plaintiffs did not offer to pay the value of the articles which they sought to protect; it was held, that a court of equity would not interfere.
    In such case, it would not strengthen the plaintiffs’ claim, that the execution debtor had more than sufficient to pay all her debts other than the property in question.
    A naked trust in one for the benefit of another, without any discretionary power in the trustee as to the appropriation, does protect the property from liability for the debts of the cestui que trust.
    If, in such case, the legal rights of the trustee have been invaded, he has adequate remedy at law.
    Where the plaintiffs in such bill alleged, that the defendants threatened and were about to levy their execution upon the real estate of the deceased; and that such levy would not only be illegal, but would greatly embarrass the settlement of the estate; and it appeared, that the time limited for the settlement of the estate had long since expired, without any manifestation of a desire, by the plaintiffs, to complete the settlement; it was held, 1. that the interference of the court, in the manner claimed, would enable the plaintiffs, by their delay, effectually to shield the property of the debtor from the claims of her creditors; but 2. the levy of an execution upon her life estate in the realty, would not affect proceedings in relation to the settlement of the estate concerning the personalty.
    This was a bill in chancery, praying for an injunction.
    The plaintiffs alleged, that on the 25th day of October, 1846, Samuel W. Johnson died, leaving a will, by which he gave and devised to his wife Susan, the use of one-half of all his real estate, during her life, and one moiety of all his personal property, for her sole use and benefit. And to avoid the trouble of an inventory of the personal property in his dwelling-house, she was permitted to take the whole, at 2,000 dollars, or deliver any part of it to his children, at such a valuation, as might be agreed upon, by her and them. All the rest and residue of his estate, was given to his four children, viz., the plaintiffs, and Robert Charles Johnson and Elizabeth Devereaux, to be equally distributed between them. The plaintiffs were appointed executors, and William Samuel Johnson, one of the plaintiffs, was appointed trustee, for said Susan, of the real and personal estate given to her by the will. By a codicil, the testator, after stating the embarrassments of his son Robert Charles Johnson, and his large indebtedness to the testator, revoked the devise and bequest of the share given to him in his will, and gave the same to the plaintiffs, his executors, whom he appointed special trustees of said share, to hold and occupy the same, and apply the income thereof, for the benefit of their mother.
    The plaintiffs then averred, that they accepted the trusts conferred upon them by the will; made and returned to the court of probate an inventory; that the debts of the testator, as allowed by them, amounted to about 9,800 dollars, and his liabilities as surety, to more than 8,000 dollars, a part of which the plaintiffs had paid, and for the residue they might be called upon to pay out of the personal estate of the deceased; that the estate was unsettled—a large amount of debts being unpaid; and that all the personal estate might be required to liquidate them; that there had been no distribution of the estate; and the said Susan had never accepted the provision made for her, in relation to the furniture, nor taken the same, or any portion of it, as her own property, but it belonged to the estate of the deceased, and to the plaintiffs, as his children, heirs and executors, and has remained in their hands and possession.
    The plaintiffs further averred, that on the second Tuesday of February, 1849, before the superior court for the county of Fairfield, the defendants recovered sundry judgments against the said Susan, amounting to about the sum of 3,400 dollars, upon which they took out executions, and caused one of them to be levied upon said furniture, and various other articles of personal property, belonging to said estate, and were about to sell the same, for the purpose of paying said execution; and threatened, and were about, to levy the other executions upon the real estate of the deceased. That if the personal estate, so levied upon, should not be wanted for the payment of the debts and liabilities of the testator, still the plaintiffs, as his children and heirs, are very unwilling that the furniture should be sold for the payment of the debts of the said Susan, because most of it are family relies, descended from many generations, and of inestimable value to them, on that account; that among the articles are many gifts from deceased friends and relatives, family pictures, and other property of that description, which the testator was not only desirous to have retained in the family, but which the plaintiffs were exceedingly anxious to retain.
    They also averred, that the said William Samuel Johnson accepted the trust conferred upon him by the will, and had acted as such trustee; and that the said Susan had no estate, real or personal, which could lawfully be taken; but that, if she had such an interest in the estate of the deceased as could be lawfully taken, she had more than sufficient for the payment of her debts, other than that levied upon as aforesaid; that the sale of the personal property levied upon would be illegal and unjust, and would work irreparable injury to the plaintiffs; and that the levy of the executions upon the real estate would not only be illegal, but would embarrass the settlement of the estate.
    The bill then prayed for an injunction against the sale of the property levied upon as aforesaid, and the further intermeddling with the estate of the deceased, under said executions.
    The bill was dated May 29th, 1849.

      This cause was referred to a committee, who, among other matters, found, that the testator died leaving a will and codicil, as set forth in the bill, which were afterwards, on the 4th day of November, 1846, duly proved, and approved by the court of probate; that the plaintiffs accepted the trust of executorship, caused an inventory of the estate to be made, amounting to 69,906 dollars, of which 32,092 dollars, 9 cents, was in real estate; that Edwards Johnson, one of the plaintiffs, made oath before the court of probate, that the inventory was a true and perfect one. It embraced two bonds against William S. Johnson, one of the plaintiffs, appraised at 3,946 dollars, 15 cents, and an amount against the said Edwards Johnson of 657 dollars, 10 cents. The court of probate allowed one year from the time of the probate of the will for the settlement of the estate.
    The debts of the testator, as rendered to the plaintiffs, amounted to 10,252 dollars, 31 cents, of which 2,559 dollars, 43 cents, remained unpaid; and his liabilities, as surety for the said Edwards, to 8,216 dollars, of which 5,936 dollars were still outstanding.
    These claims had never been exhibited to the court of probate; nor had there been any division or distribution of the furniture, or other property of the deceased; and the plaintiffs had never settled their administration amount.
    The testator, in his life-time, executed an instrument in writing, assigning the said two bonds against the said William S. Johnson, and certain other bonds not embraced in the inventory, to his wife Susan Johnson; and this instrument and the bonds were found by the plaintiffs, after his decease, among his papers, in a package with his will and codicil.

      William S. Johnson accepted the appointment of trustee under the will, and acted as such. The personal property in the dwelling-house, valued in the will at 2,000 dollars, was appraised at 1,741 dollars, 50 cents, only, and remains in the dwelling-house, as it was before the death of the testator.
    The said Susan being far advanced in years, by an arrangement made, soon after the death of her husband, between her and her children, including the plaintiffs, acting as such children and executors, the said Edwards Johnson with his family moved into the dwelling-house of the deceased, the whole constituting one family, with the intent, on the part of the executors, that such arrangement should continue during her life, for her comfort and convenience; and that no distribution of the said furniture or other moveable property should be made, during her life. She, at all times, so far as she pleases, uses and controuls the furniture and other moveable property; and the said Edwards and his family, at the same time, use the property, in like manner, for their comfort and convenience.
    There was no explicit act or declaration ever made by her, accepting the provision made for her in the will, or for the purpose of taking possession of said property; nor have the plaintiffs, by any explicit act or declaration, ever assented to the bequest to her. But whether there had been such acceptance and possession by her, with the assent of the plaintiffs, was a matter left depending upon the inference to be drawn from the facts aforesaid.
    The averments in the bill, respecting the judgments recovered by the defendants against the said Susan, and their proceedings upon the executions issued upon said judgments, were found to be true, as therein stated; that a part of the articles levied upon, viz., four ottomans, a solar lamp, four vases, and a china tea set, were articles given to her in the life-time of her husband, by friends and relatives, as family presents.
    The judgments were rendered upon several promissory notes, drawn by the said Edwards, payable to the order of the said Susan, and by her endorsed, at his request, and for his accommodation, for the purpose of enabling him to procure them to be discounted by the defendants, for his benefit; and the defendants were induced to discount them, by his representation made to the directors of the bank, that she was abundantly responsible for the amount of all her endorsements, by reason of a large amount of property bequeathed to her, by the will of the testator; and had it not been for such representations, said notes would not have been discounted, by the defendants.
    The case was reserved for the advice of this court as to what decree should be passed.

      Bissell and Loomis, for the plaintiffs,
    contended, 1. That Upon the facts found, Susan Johnson had no interest in the estate of Samuel W. Johnson, deceased, which could be taken on execution, and applied to the payment of her debts. In the first place, upon the death of Samuel W. Johnson, the legal title to all his personal estate vested in his executors. 1 Sw. Dig. 444. 445. Roorbach v. Lord, 4 Conn. R. 347. Taber v. Packwood, 1 Day, 150. Beecher v. Buckingham, 18 Conn. R. 120. 121. Perkins, admr. v. Stone, 18 Conn. R. 270. 274. Schuyler v. Hoyt, 5 Johns. Ch. R. 196. This rests upon the very obvious principle, that they are accountable to creditors and legatees for the property which comes into their hands. 1 Sw. Dig. 156. Wheeler v. Swan, 4 Day, 137. Roorbach v. Lord, 4 Conn. R. 347. Secondly, there is nothing in the finding of the committee, which divests the title thus vested in the executors, or which takes the case out of the operation of the general principle. It is no answer that the one-half of the personal estate was devised to Mrs. Johnson. Taber v. Packwood, 1 Day, 150, Nor that the executors have not settled the estate, in conformity to the requirements of their probate bond. Nor that Mrs. Johnson has elected to take the furniture in the house. She has made no election; nor can that inference be drawn from the facts found by the committee. Nor is it any answer to say, that the property may not be wanted for the payment of debts.
    2. That in regard to all the property devised to Mrs. Johnson, the will of S. W. Johnson creates a trust; and the legal title vests in the trustee. See the language of the will. No precise form of words is necessary to the creation of a trust. It is sufficient that the intention of the testator can be clearly understood. Lewin on Trusts, 76, 77. (8 Law Library, 40.) See also Cary v. Cary, 2 Scho. & Lef. 189. Paul v. Compton, 8 Ves. 380. Harding v. Glyn, 1 Atk. 469. Huxton v. Corse, 2 Barb. Ch. R. 506. Bull v. Bull, 8 Conn. R. 47. Malim v. Keightly, 2 Ves. jr. 333. 235. Parsons v. Baker, 18 Ves. 476. 2 Sw. Dig. 156. Hill on Trustees, 229. 232. 234. 305. 64. 65. Harton v. Harton, 7 Term R. 652. 1 Cruise’s Dig. tit. 12. ch. 1. § 25. Morice v. Bishop of Durham, 10 Ves. 537. Countess of - v. Duke of New-Castle, 12 Ves. 227. Schuyler v. Hoyt, 5 Johns. Ch. R. 196.

      3. That this is a case in which it is proper for the court to interfere, by way of injunction. In the first place, if our views of the case are correct, the defendants can derive no benefit from a sale. Secondly, the nature and condition of the property require the interposition of the court.

      Dutton, for the defendants,
    contended, 1. That the plaintiffs could not recover, unless they shewed some equity, as executors of S. W. Johnson; and that as such, they need no relief: because, first, they have abundant property left in their hands to pay all debts, &c., against the estate. The present amount is 25,036 dollars, 60 cents. In addition to this, the payment of the debts against Edwards Johnson, amounting to 8,216 dollars, would create a debt in favour of the estate to an equal amount. Smith v. Kearney, 2 Barb. Ch. R. 533. Secondly, they have neglected settling the estate for a long time, and have declared their intention not to settle it, as long as Mrs. Johnson lives. The court will not help them to violate their duty and injure creditors. Thirdly, they have adequate remedy at law. If they still have the title, it is a legal title. The value of the property will answer their purpose, as well as the property itself. Warner v. Paine, 3 Barb. Ch. R. 630.
    2. That if it is said, that the plaintiffs sue also as heirs at law, the answer is, first, that they cannot sue in both capacities. The bill would be multifarious. 2 Sw. Dig. 202. A bill against two executors, and one of them as heir, was dismissed. Cooper’s Eq. 182, 183. Ward v. Duke of Northumberland, 2 Anstr. 469. Secondly, they shew no equitable right, as heirs. The articles of peculiar value found by the committee, were gifts to Mrs. Johnson, and not such as equity would protect for the heirs. Thirdly, if there is any equity, the daughter ought to have joined, having more reason to claim these articles.
    3. That if it is claimed, that W. S. Johnson is a trustee, the defendants say, first, the will gives him no title, but a mere supervision. Pow. on Dev. 193. 1 Sw. Dig. 137. Mansfield v. Mansfield, 6 Conn. R. 559. Secondly, if he has any claim as trustee, he should have sued alone. Thirdly, he would have adequate remedy at law: he would have the legal title.

      4. That the execution was levied according to law. First, Mrs. Johnson had a legal title to the property. Secondly, if she had only an equitable title, that was liable to be taken. The great principle of our law regulating the intercourse of debtor and creditor, is, that all the property of the debtor should be liable to be taken. Davenport v. Lacon & al. 17 Conn. R. 278. An equity of redemption in real estate is always liable; so is an equity of redemption in chattels. Magee v. Carpenter, 4 Ala. R. 469. McDonald v. Foster, 5 Ala. R. 664. So also is a trust estate in land. Davenport v. Lacon & al. ubi. sup. Thompson v. Whatley, 5 Sm. & Mar. 499. Evans v. Wilder, 5 Miss. R. 313. If W. S. Johnson, a non-resident, could be trustee, and Mrs. Johnson have the sole beneficial interest and possession, they could, if a contrary doctrine prevailed, set the creditors at defiance.
    5. That the legacies had become vested in Mrs. Johnson. The committee find, that W. S. Johnson acted as trustee, and paid money to her, as such. His title, as executor, then had ended. No express assent is necessary in this state. Goodwin v. Chaffee, 4 Conn. R. 163. 1 Sw. Dig. 460. Mrs. Johnson's receiving money as cestui que trust, proves her assent. The whole conduct of the family shews the same thing. Trover will lie, by a legatee, for goods set aside by the executor, and said by him to belong to the legatee. Dimond v. McDonald, 7 Watts, 510. The declarations of Edwards Johnson, one of the executors, to the Connecticut Bank, are evidence of the assent of the executors to Mrs. Johnson's taking the legacy.
    6. That the plaintiffs cannot recover, they being estopped; first, because the bank loaned the money on the strength of Edwards Johnson's declarations of what his mother took by the will. The bank of course understood him to mean, that her property was within reach. Roe v. Jerome, 18 Conn. R. 443. East-Haddam Bank v. Shailor, 19 Conn. R. 18. Kinney v. Farnham, 17 Conn. R. 361. Bushnell v. Church, 15 Conn. R. 406. 419. Pickard v. Sears, 6 Adol. & Ell. 469. (33 E. C. L. 115.) Brown v. Wheeler, 17 Conn. R. 353. Secondly, if he is bound, both of the executors are: each executor may discharge a claim. Lewin on Trusts, 280. (8 Law Lib. 142.) 1 Sw. Dig. 449. The executors can bind themselves, by an award, and of course, by an estoppel. Alling v. Munson, 2 Conn. R. 691. Sugd. on Powers, 1.
   Waite, J.

We see no ground upon which the present suit can be maintained.

1. It is, in the first place, said, that upon the death of the testator, the legal title to the personal property vested in the plaintiffs, as executors; and that they are accountable to the creditors and legatees for all that comes into their hands. This is undoubtedly so; and that title still remains in them, unless they have parted with it, in whole or in part. Beecher v. Buckingham, 18 Conn. R. 120, 1. Perkins, admr. v. Stone & al. 18 Conn. R. 277. Roorbach v. Lord & al. 4 Conn. R. 347. Taber v. Packwood, 1 Day, 151.

But, in the present case, the testator, by his will, gave to his wife one-half of all his personal property, and the use of one-half of his real estate, with permission to take his household furniture at a specified valuation, or deliver any part of it to his children, at such price as might be agreed upon, by them. The residue of his property was given to his children.

This provision made for the wife, was clearly beneficial to her; and her assent will be presumed until the contrary is shewn. As soon as the assent of the executors is given to this bequest to her of the personal property, her title becomes perfected, and her share rendered liable to be taken on execution for the payment of her debts.

But it is claimed, that this assent has never been given. It is indeed found, that it has never been done, by any explicit act or declaration. This is not required. It may be implied, as well as expressed. It is found by the committee, that very soon after the death of the testator, an arrangement was made, by her and the plaintiffs and the other children of the deceased, that Edwards Johnson, one of the plaintiffs, with his family, should move into the house with her, and occupy the furniture and other moveable property at pleasure, with the intent that such arrangement should continue for her life; and that they have so occupied and possessed the property, ever since the arrangement was made; that William S. Johnson accepted the trust, as to the share of his mother, and acted under it; and that Edwards Johnson, at the time of procuring the loan from the defendants, upon his notes indorsed by her, represented to the defendants, that she had received a large amount of property, under the will of her late husband. These facts furnish very satisfactory evidence of the assent of all parties to the provision made for her in the will.

It is also found, that there has been no division or distribution of the property. Nor was that necessary to the perfection of her title. Until that is done, the parties hold as joint tenants; and her undivided moiety in the joint property, is as much liable to be taken upon execution as any property which she might own in severalty. It is, therefore, unimportant to enquire, whether the property levied upon was owned by her in severalty, or jointly with all, or some part of the other owners. In either case, her interest may be taken; and we are not called upon, in the present suit, to determine the extent of that interest.

But suppose the plaintiffs have never parted with their legal title, and they still remain, in contemplation of law, the owners of the property levied upon, by the defendants; why have they not adequate remedy at law, in an action of trespass or trover? We see nothing to distinguish it, in that respect, from the ordinary case, where one person has unlawfully taken the goods of another, upon an execution against a third person. The remedy, in such case, for the party injured, is at law, and not in chancery.

2. Again, it is said, that the property may be needed, by the plaintiffs, for the payment of the debts of the deceased. But is it not averred in the bill, that it is in fact so needed; and the report of the committee shews the reverse. The inventory of the personal estate, as sworn to by one of the plaintiffs, exceeds the sum of 35,000 dollars, while all the debts and liabilities of the deceased are less than 20,000 dollars. One-half of the balance, even after deducting the debts due from the plaintiffs, is more than sufficient to satisfy all the executions in favour of the defendants.

But were it otherwise, the question again recurs, why sue in equity? It is not claimed, that the defendants are insolvent, and unable to respond in damages for all the property which they may illegally take and convert to their own use. The money collected in that form, for aught that appears, may be equally as available for the payment of debts, as the property taken by the defendants.

3. It is stated in the bill, that if the property taken by the defendants, should not be wanted for the payment of the debts and liabilities of the deceased, yet it embraces family relics, gifts from deceased friends, family pictures, and other property of like description, of great interest and value to the plaintiffs, which they are exceedingly anxious to retain. It is unnecessary to enquire what might be done in relation to family pictures, possessing no intrinsic value, and of no use to any one, except the family relatives; because it does not appear from the report of the committee, that any such articles have been taken, by the defendants. The only articles falling within that description of property in the bill, which have been levied upon, are the ottomans, lamp, vases, and china tea set. Now, we know of no law exempting such property from execution, whether purchased by the debtor, or presented to her as family presents. Besides, these articles are presents to Mrs. Johnson, and yet she is no party to the present suit.

But there is still another fatal objection to the plaintiffs’ claim upon this ground. They do not even offer to pay the value of the articles which they seek to protect. It may be unpleasant to them to have these articles sold upon execution; and it may be as unpleasant to the defendants to be defrauded of their debt. So it may be very painful to the feelings of a debtor, reduced to poverty, by misfortune, to have the family mansion, long occupied by him and his ancestors, taken from him, and himself and his family turned houseless upon the world; yet we know of no authority in a court of equity, to interfere and say, that the creditor shall not collect his debts.

4. Again, it is averred in the bill, that if she has any interest in the estate, which can be taken on execution, she has more than sufficient to pay all her debts, other than the property in question. If she has the means of paying the debts of the defendants, why does she not do it, and thereby exonerate the property which has been taken? There is no averment in the bill, nor claim made, that the defendants have ever refused payment, or endeavoured to do any thing more than is required to enforce payment.

But the plaintiffs do not even say, that she has any other property, which can be legally taken, by the defendants; or any other than that derived under the will from the estate of her late husband. To compel the defendants to relinquish the property which they have taken, because the title to it is defective, and resort to other property holden under a like defective title, would be absurd.

5. It is further said, that the property in question was given to William S. Johnson, in trust for his mother; and therefore, is not liable to be taken for the payment of her debts.

To this claim several answers may be given. In the first place, the property is not so given, as to place it beyond the reach of her creditors. He has but a naked trust, without any discretionary power as to the appropriation; and the mere circumstance that she has but an equitable interest, does not shew, that it may not be taken for her debts. It is the policy of our law, that all the property of a debtor should be responsible for his debts. And his equitable estate may be taken, as well as his legal, provided it is subject to his controul. Davenport v. Lacon & al. 17 Conn. R. 278. Again, if the legal rights of the trustee have been invaded, he has adequate remedy at law. And finally, what right has Edwards Johnson, one of the plaintiffs, to sue for property given to his brother, in trust for his mother? He is not a trustee, and has no interest, either legal or equitable, by reason of the trust.

The claim set up, that she has no interest in the estate of her late husband, which can be taken, to satisfy her debts, comes with a peculiarly ill grace from him, when it appears, that these debts, which the defendants are now endeavouring to collect, were by her contracted, solely for his use and benefit; and the defendants were induced to part with their money, relying upon his representations that she was abundantly responsible for all her debts, by reason of a large amount of property given to her, by the will of her late husband.

Finally, it is alleged in the bill, that the defendants threaten, and are about to levy a part of their executions upon the real estate of the deceased; and that such levy would not only be illegal, but would greatly embarrass the settlement of the estate ; and therefore, they pray that the defendants may be enjoined against farther intermeddling with the estate.

The claim in relation to the embarrassment, if well founded, would be entitled to but little favour, since the time limited for the settlement of the estate, has long since expired; and no disposition is manifested, by the plaintiffs, to complete the final settlement, during the life of their mother. To interfere, in the manner claimed, would enable them, by their delay, effectually to shield the property of their mother from the claims of her creditors.

But further: we are unable to see in what manner the levy of an execution upon her life-estate in the realty, can affect their proceedings in relation to the settlement of the estate, so far as the personalty is concerned. If, as they claim, she has no interest which can be legally taken, it furnishes no ground for the interference of a court of equity, by way of injunction. The proper place for the trial of the validity of a title, by virtue of the levy of an execution, is in an action of ejectment.

Other objections have been urged, on the part of the defendants, as to the form of the bill; but we deem it unnecessary to consider them; and we advise the superior court to dismiss the bill.

In this opinion the other Judges concurred.

Bill dismissed.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    The First Baptist Church and Congregation in Stamford against Rouse.
    Where a Baptist church and the society connected therewith made a contract of settlement with R, as their pastor, by which he was to receive a certain salary and the use of a parsonage belonging to the society; R acceded to the terms, and was duly installed as pastor; about three years afterwards, there being hard feelings and alienation among the members of the church and society, and between them and their pastor, the latter, with a portion of the church, left the meeting-house where he was installed, and set up regular worship for themselves, first in a large hall, and then in a new meeting-house, at a considerable distance from the old one, maintaining, by themselves independently, all the ordinances of the gospel, and gathering into their number new members, until they became a large and flourishing church and congregation, having practically no connexion or correspondence with the old church or its members, although no certificates of withdrawal were lodged with the clerk of the old society; the remaining members continued in their meeting-house, fulfilling there, with a new pastor, their appropriate duties respectively; not having ever voted or consented to change their place of worship, or give up any of their rights; in an action of ejectment, brought by the old church and society against R, to recover the possession of the parsonage, it was held, 1. that the circumstances above stated were not so decisive in their character, that the court could pronounce a conclusion of law upon them as to the general fact of secession; 2. that they tended to prove it, and were admissible for that purpose; 3. that whether the proof was sufficient, was a question which it was the province of the jury, to determine; 4. that where the court instructed the jury, that upon these facts, they could, with propriety, find the secession, as claimed by the plaintiffs, and that the defendant had abandoned the plaintiffs and their church, and such was the opinion of the court, the question of secession was left to the jury, as a mere question of fact; 5. that the jury having found a verdict for the plaintiffs, they were entitled to retain it.
    Fairfield,
    June, 1851.
    This was an action of ejectment for a small parcel of land in Stamford, containing about three roods.
    The cause was tried, on the general issue, at Danbury, October term, 1850.
    It was admitted, that the legal title of the demanded premises, consisting of a parsonage, was in the plaintiffs. The defendant claimed, that he was entitled to the possession of the premises, by virtue of a contract with the plaintiffs. The church belonging to said society, it was admitted, gave the defendant a call to settle with them in the ministry, as their pastor; and a church meeting, held, on the 1st day of November, 1845, passed the following votes: “Proceeded to deliberate on the propriety of employing Bro. Henry H. Rouse, as our pastor, who has now been labouring with us, for several weeks, with reference to a settlement with us, and is now present as a candidate for office. Whereupon it was
    “Resolved, that we give him a call for the office.

      “Voted, that we give Bro. Rouse three hundred dollars a year, and the use of the parsonage, by hiring the same of the society.
    "Bro. Rouse accepted the terms proposed.

      “Voted, that a committee, consisting of brethren Deac. Hurlburt and W. W. Young, be appointed to agree with Bro. Rouse about the terms of payment.”
    It was admitted, that the committee of the church communicated these votes to the defendant; that he accepted the invitation, and was duly installed over the church; and that, by the usages of the Baptist denomination, a pastor is employed and settled, by the church worshipping with the society, without the coöperation of the society. It was also admitted, that no person was a member of a Baptist society, who was not also admitted a member of the church connected with it; and that the church and the defendant had, either of them, a right, by the terms of the settlement, to terminate the relation, upon three months notice given by one to the other.
    The defendant introduced evidence to prove, and claimed, that the contract of settlement, though made by the church, was made by the society, through the instrumentality of the church; and although there was no formal vote of theirs, their assent and agreement might be inferred from the evidence, and so they were bound by the terms of the settlement. The court instructed the jury, that such assent might be inferred, if the evidence, in their opinion, warranted it.
    The plaintiffs denied that they were parties to the contract of settlement, in any sense whatever; and claimed, and introduced evidence to prove, that the church had not acted, or pretended to act, for the society, and that the society had never agreed to the terms of settlement; and that the society were not, and neither the defendant or church understood that the society were, parties to said contract of settlement.
    The court left the facts to the jury, remarking that a formal vote was not indispensable; that consent might be inferred from other satisfactory evidence; in which case the society would be bound.
    The plaintiffs further insisted, that if they were parties to the contract of settlement, yet such were the facts in this case, the defendant had not a right to withhold the parsonage from them, at the time of suit.

      It was proved and admitted, that in the last of March, 1848, (there being then hard feelings, and alienation, among the members of the church and society, and between them and their pastor, disturbing their harmony,) the defendant, with a portion of the church, (which he claimed was a majority, but which the plaintiffs denied,) and a portion of the society, left the meeting-house where the defendant was installed, and set up regular worship for themselves, with the defendant, as their pastor, in a large public hall in the town, at some considerable distance, and soon erected a new meeting-house, at a like distance in the town, which they took possession of; that when the defendant and his adherents left the meeting-house of the plaintiffs, and went into said public hall, and thence into their new meeting-house, the church members among them became, and have since continued to be, in fact, a church by themselves, by the name of the “Bethesda Church,” with the defendant as their pastor, maintaining by themselves, independently, all the ordinances of the gospel, gathering into their number new members, until, as they claim, they have become a large and flourishing church and congregation, having practically no connexion or correspondence with the church worshipping with the plaintiffs, nor with the plaintiffs themselves, although no certificates of withdrawal have been lodged with the clerk of the society; that the plaintiffs, and such of the church members as had not left them, remained, as before, in their meeting-house, each respectively fulfilling there his former and appropriate duties, the church having settled a new pastor for the purpose of performing the pastoral duties appropriate to the church and the society; that neither the society, nor had the church remaining with it, ever voted or consented to change their place of worship, or given up their rights, records or papers, except as implied from these facts; nor have they any connexion with, or controul over the “Bethesda Church,” or the people with them, or their house of worship.
    Upon these facts the defendant claimed, that the Bethesda Church was the true and only church belonging to the society. This the plaintiffs denied; and insisted, that the church which remained, was the true and only church of the society; and that the defendant and his adherents, in going away and building a new house of worship, and doing the other things above stated, without other necessity than what is above stated, was a secession by them, putting an end to the settlement, and any claim of the defendant to retain the parsonage house afterwards.
    The court instructed the jury, that upon these facts, they could, with propriety, find the secession, as claimed by the plaintiffs, and that the defendant had abandoned the plaintiffs and their church; and such was the opinion of the court itself. And if they found it was so, then the defendant had no right to keep the parsonage after such abandonment.
    It was admitted, that the plaintiffs gave the defendant, on the 25th of April, 1848, notice to quit in June 1848, by a committee appointed for that purpose. The defendant objected to the sufficiency of the notice, because it was ordered only by the society, at a special meeting in April, which meeting was warned by the society’s committee; but there was no evidence, that it was called at the request of a majority of the members of the society, and therefore no legal meeting. The court held the meeting to be legal.
    The jury returned a verdict for the plaintiffs; and the defendant thereupon moved for a new trial.

      Dutton and Ferris, in support of the motion,
    contended, 1. That the facts admitted or claimed, on the trial, furnished no evidence of a secession. The rules applicable to Congregational societies are not applicable to societies not local.
    2. That the question of secession was purely a question of fact, and should have been submitted as such.
    3. That the court erred in charging the jury substantially, and in deciding, that the defendant had abandoned the plaintiffs and their church, instead of submitting the matter to the jury as a question of fact, whether the defendant had so abandoned and seceded from the plaintiffs. Fuller v. Crittenden, 9 Conn. R. 406.

      Hawley and Butler, contra,
    insisted, 1. That upon the facts shewn, there was clearly a secession from the church and society of the plaintiffs; those who remained constituting the church and society, retaining all the rights and property thereof. Stebbins v. Jennings, 10 Pick, 172. Sutton v. Cole & al. 8 Mass. R. 98. Milford v. Godfrey, 1 Pick. 101. Brown v. Porter, 10 Mass. R. 97. The seceders could, by no act of theirs, affect the rights of the church and society. Whether the facts admitted constituted a secession, was, in the first place, a question of law; and so it is considered and treated in the cases above referred to. But secondly, if it was a question of fact, that question was submitted to the jury; and they have found that there was a secession.
    2. That the seceders, by the act of secession, ceased to be members of the church and society represented by the plaintiffs.
    3. That it is enough for the purposes of this case, that the defendant had himself abandoned the church and society, and ceased to officiate therein. His right to remain in the parsonage was thereby terminated. Angel & Ames on Corp. 425.
    4. That the notice to quit, was sufficient. In the first place, there is no law requiring the request of a majority to call a meeting. The meeting itself was a legal one. But secondly, in this case, no notice to quit was necessary. The defendant was not a tenant of the church and society, but their servant merely, while he remained in their employment. Hunts v. Colson, 3 Moore & Scott, 790. (30 E. C. L. 319.) Doe d. Waithman & al. v. Miles, 1 Stark. Ca. 181.
   Storrs, J.

It is conceded before us, that, whether the contract of settlement was made by the defendant, with the members of the church connected with the Baptist society, (the plaintiffs,) or with the society through the instrumentality and agency of the church, the defendant became, by that contract, the pastor of the said society and church; that he, under the arrangement made, at the time of such settlement, between him and the society and the church, then became entitled to the use of the demanded premises, which was the parsonage belonging to the society, only during the time while that relation continued; and that the right to the possession of them, therefore, reverted to the society, which was the owner thereof in fee, when such relation ceased: and the only question raised before us respects the correctness of the charge below, on the facts admitted by the parties, and detailed in the motion, bearing on the claims made by them respectively as to the termination of that relation ; the plaintiffs insisting, and the defendant denying, that, on those facts, such relation ceased. It is conceded, that whether such was the case, depends on the question, whether the defendant had voluntarily abandoned the society, and the church connected with it, and ceased to perform his pastoral duties to them. That there was any justifiable cause shewn for such abandonment and neglect of duty, if it took place, is not claimed.

The defendant insists, that whether he was chargeable with the violation of duty thus imputed to him, was merely a question of fact, on the circumstances admitted, and complains, that it was not submitted as such to the jury, on the trial.

We accede to the claim, that those circumstances presented a question of fact, as to whether the defendant had abandoned the society and church, rather than a question of law. They were not so decisive in their character, that the court could pronounce a conclusion of law from them as to the main fact of such abandonment. So far as their effect is concerned, they tended to prove it, and therefore constituted admissible proof for that purpose; but whether they were sufficient, was for the jury to determine, whose province it was, to draw the proper inference from them. There being on the part of the defendant, no express or declared abandonment of the society or church, the question of such abandonment presented an enquiry of fact of a complex nature, involving the bearing and weight of the circumstances, and therefore to be decided, not by the court, but by the jury on the evidence. If, for instance, the society and church considered it proper and expedient, that the defendant should take the course which he did, and which, on the trial, was claimed to prove a relinquishment of his pastoral relation, and the duties appertaining to it, and therefore, consented to that course, as a temporary measure only, such consent would rebut the inference which might otherwise be drawn from the conduct of the defendant. It does not appear, that there was any evidence of an express assent of that description; but yet, the circumstances admitted between the parties would present a proper topic of argument and inference on the point, whether the approbation or consent of the society and church was not fairly to be inferred from them. But such inference could be drawn only by the jury, as a matter of fact; and no conclusion of law could arise with respect to it, except as it should depend on the decision of the jury, as to the existence of such assent. The same may be said of other inferences, which might be claimed from the same evidence as qualifying or explaining the conduct of the defendant.

But we think that there is no ground for the exception of the defendant, that the court below decided the question of such abandonment as one of law, instead of submitting it to the jury. It is quite clear to us from the motion, that it was left to the jury, as a mere question of fact. The language of the judge is such, that they could have no doubt that it was his intention to leave the question of secession and abandonment, as claimed by the plaintiffs, to them, to find, as a matter of fact, from the circumstances admitted between the parties. He indeed accompanied the charge with a clear expression of his own opinion as to the weight of the evidence on that point; but the very manner in which he introduced into the charge the expression of such opinion, it being immediately after he had submitted the decision of the question to the jury, shewed, that he did not intend to direct or controul them on that point. It is competent, in all cases, and in many highly expedient, for the court, not only to discuss, but to express its opinion upon, the weight of the evidence, without however, directing the jury how to find the facts; and this is a right necessarily limited only by its own discretion. We are not called on to say, whether such discretion might not be so exercised as to require the interposition of this court, by way of advice, on a motion for a new trial; because in this case, we are entirely satisfied with the course taken by the judge below, in this respect.

The objection made by the defendant, on the trial, as to the validity of the notice to him to quit the demanded premises, given by the plaintiffs, through their committee, has not been pursued before us; and a reference to the statute on that subject, will shew, that it was unfounded. Stat. 168.

A new trial is not advised.

In this opinion the other judges concurred.

Motion denied


author: Church, Ch. J.

text:
    Baldwin against Walker. Walker against Baldwin:
    IN ERROR.
    Where the original declaration was in covenant for rent on an indenture between S and W, setting forth the indenture as the ground of action, and averring an assignment of it to the plaintiff with notice, and assigning a breach; during the pendency of the action, the plaintiff offered a new count as an amendment, setting forth more specially the manner of the assignment to the plaintiff, shewing how he became assignee, not of the lease merely, but of the reversionary interest; which amendment being allowed, it was held, that this was not erroneous, as changing the form or ground of the action.
    An assignee of a lease and of the rent and reversionary interest, may maintain an action of covenant, in his own name, for arrears of rent falling due after the assignment; the ancient common law on this subject not having been adopted here, either by judicial recognition or legislative enactment.
    This doctrine is especially true, where there has been an assent or attornment by the tenant.
    Though we have, in our judicial practice, adopted such of the common law of England, as was operative as law, in that country, when our ancestors left it, and which was adapted to the new state of things here; yet no abrogated or repealed law of England was considered as binding or existing here.
    Where the assignee of a lease by indenture for five years, which was neither acknowledged nor recorded, sued for the first year’s rent, thereby recognizing the lease as a valid and subsisting one; it was held, 1. that such lease for the year in which the rent sought, to be recovered was payable, would be good, without being acknowledged or recorded; 2. that it was not void, but voidable only, by such third persons as had a right and an interest to avoid it as a lease for a longer period than one year; 3. that the defendant, who had occupied under it, and by whose neglect it was not recorded, could not make the objection.

      Fairfield,

    June, 1851.
    Where the rent, by virtue of such lease, was to commence on the 1st of April, 1844; and before the expiration of one year, and before any rent had become due and payable, the lessor, on the 22nd of March, 1845, by deed of mortgage, conveyed his interest in the premises to the assignee of the lease, to secure the payment of 1,500 dollars; in an action afterwards brought, by the mortgagee and assignee, to recover the first year’s rent, which was then in arrear; it was held, 1. that the lease, as between these parties, must be treated as an effective one, and as leaving, when made, a reversion in the lessor; 2. that by his mortgage to the plaintiff, this reversion, as a subsisting legal interest, was conveyed to the plaintiff, claiming his right incident to such reversion.
    Where the declaration, in such action, alleged an assignment to the plaintiff of the machinery in a factory, with the fixtures and appurtenances; which allegation the defendant traversed, and tendered an issue thereon; after verdict for the plaintiff, the defendant moved in arrest of judgment, for the insufficiency of the declaration and the immateriality of the issue; it was held, 1. that the machinery of a factory was not necessarily personal property; but 2. as here was a lease of the factory, machinery, fixtures, &c., as one entire subject, at an entire rent, and treated by the parties as one whole, the court would so consider it.
    Where the issue joined, in such case, involved the allegation of an attornment on the part of the defendant, or an agreement by him to pay rent to the plaintiff, after the assignment of the lease; it was held, that such allegation was pertinent, and the issue was not immaterial.
    Where, on the trial of such issue, there was evidence of matters not in issue, and the defendant prayed the court to instruct the jury as to the effect of such evidence; which the court did not do; it was held, that this was no ground for a new trial.
    This was an action of covenant for rent.
    The declaration originally contained but one count, alleging, That on the 15th of February, 1844, an indenture was made between Seth Stoddard, on the one part, and Alfred Walker, the present defendant, of the other part, in the following words: “This indenture, made, &c., witnesseth, that the party of the first part, for the consideration hereinafter mentioned, hath demised, granted and leased, and by these presents, doth hereby demise, grant and lease unto the party of the second part, his heirs, executors, administrators or assigns, one undivided half of a certain woolen factory, situated in Newtown, and now owned and in the possession of said Stoddard and Walker, together with all the lands and appurtenances thereto belonging, as set forth in a deed from Ebenezer Blackman to the said Stoddard and Walker, and also with all the machinery, fixtures and appurtenances belonging to the said Stoddard, and the said Stoddard and Walker, now in and about their factory, a schedule of which is annexed, with the exception of one napper and press-plates, and one loom: to have and to hold the said factory, with the appurtenances thereto belonging, to the party of the second part, his heirs, administrators, executors or assigns, from the 1st day of April, 1844, for and during the full term of five years next ensuing and ended, he paying therefor annually, on every 1st day of April, during the said term, unto the party of the first part, his heirs or assigns, the yearly rent of 150 dollars; provided, that the said party of the second part shall have power to terminate the term of this contract at the end of either one of the aforesaid years, by giving notice to the other party in writing of such intention, not less than four months previous to said termination; said party of the first part to inform said party of the second part, at the beginning of each year, when said notice shall be served or sent for the year ensuing; provided further, that if either of the parties named herein shall die within either of the said five years, then this contract shall terminate at the end of the year in which said party shall have deceased. And the said party of the second part does hereby, for himself, his heirs, executors, administrators or assigns, covenant, promise and agree, that he will well and truly pay, on demand, in Newtown, unto the said party of the first part, his heirs or assigns, the said yearly rent of 150 dollars, in the manner herein limited and provided for, according to the condition thereof, and also to expend not to exceed 100 dollars, within one year from the said 1st day of April, 1844, in building a dye-house, in repairing the fulling-mill, fixing the string of tenter-bars, repairing the regulator, in covering the ditch in front of the factory, building stairs from the basement to the first story, protecting the main band, and in other necessary repairs upon the fixed property, the expenses to be borne equally by the parties; and said Stoddard's proportion of said sum of 100 dollars shall be deducted from the rent due him at the end of the first year. And the said party of the second part agrees to make all necessary repairs upon the moveable machinery, at his expense. And the parties mutually agree, each to select a judicious, disinterested person, at the end of the first year of the term, to estimate the worth of the improvements herein before mentioned: if any difference shall arise between the parties concerning the same, these referees to have power to select a third, in case of disagreement; provided always, that the party of the second part shall well and truly pay, or cause to be paid, the aforesaid sum of 150 dollars to the party of the first part, at the expiration of each and every year he shall so occupy said leased premises; and in default thereof, then this lease shall be void and of no further effect.” Signed and sealed by the parties.
    The plaintiff then averred, that by virtue of said indenture, the defendant afterwards, viz., on the 1st day of April, 1844, entered upon all the premises, and became possessed thereof, for the term granted to him as aforesaid; that during said term, and before one year’s rent had accrued, viz., on the 24th of March, 1845, said Stoddard's right, title and interest in and to said indenture, was, by his assignment thereof, legally vested in the plaintiff, of which assignment the defendant afterwards, viz., on the 31st day of March, 1845, had due notice; that said Stoddard, before said assignment, and the plaintiff, his assignee, since, have well and truly performed all things contained in said indenture, on their part to be performed; that on the 1st day of April, 1845, the sum of 150 dollars of said rent for one year of said term became due, and was, and still is, in arrear and unpaid.
    The action was brought, in July, 1845, and returned to the succeeding term of the county court, in August; when the plaintiff moved to amend his declaration, by inserting a new count. This was objected to, by the defendant, on the ground that it would change the nature or ground of the action. The court allowed the amendment offered; and a new count, in substance as follows, was made a part of the declaration: That said Seth Stoddard, at the time of the making of said indenture was seised in his demesne as of fee of and in the tenements and premises, with the appurtenances hereinafter mentioned to have been demised and leased ; and being so seised thereof, viz., on the 15th day of February, 1844, in and by a certain indenture, made by and between said Seth Stoddard, of the one part, and said Alfred Walker, defendant, of the other part, and sealed with the seals of the parties, said Seth Stoddard did demise, grant and lease unto the defendant, his heirs, executors, administrator or assigns an undivided half of a certain woolen factory, situated in said Newtown, and then owned and in possession of said Stoddard and Walker, together with all the land and appurtenances, and also with all the machinery, fixtures and appurtenances belonging to said Stoddard, and said Stoddard and Walker, then in and about said factory, (except as in said indenture is excepted;) to have and to hold said factory, land, machinery, fixtures and appurtenances, (except as aforesaid,) unto said Alfred Walker, the defendant, his heirs, administrators, executors or assigns, from the 1st day of April, 1844, for and during the full term of five years next ensuing and ended; said Alfred Walker paying therefor annually, on every 1st day of April, during said term, unto said Seth Stoddard, his heirs or assigns, the yearly rent of 150 dollars. And said Alfred Walker did thereby, for himself, his heirs, executors, administrators or assigns, covenant, promise and agree with said Seth Stoddard, his heirs and assigns, that he would well and truly pay, on demand, at said Newtown, to said Seth Stoddard, his heirs or assigns, said yearly rent of 150 dollars annually; by virtue of which said demise, said Alfred Walker afterwards, viz., on said 1st day of April, 1844, entered into possession of and upon all said demised premises, with the said machinery, fixtures and appurtenances, and became and was possessed thereof, and so continued possessed, for the space of more than one year of said term; that said Seth Stoddard, being so seised, afterwards, viz., on the 29th day of March, 1845, at said Newtown, by a certain deed of that date, for the sum of 1,500 dollars, received to the full satisfaction by said Stoddard of the plaintiff, and in consideration thereof, did give, grant, bargain, sell and confirm to the plaintiff said demised real estate and its appurtenances; to have and to hold the same to the plaintiff, his heirs and assigns forever, to his and their own proper use and behoof; the condition of said deed being such, that whereas said Stoddard was indebted to the plaintiff, by note of even date with said deed, in the sum of 1,500 dollars, on demand, with interest, and if said Stoddard should pay, or cause to be paid, said note, according to the tenor thereof, said deed to be void, otherwise not; which said deed was signed, sealed and delivered to the plaintiff, by said Stoddard, at said Newtown, in the presence of the subscribing witnesses, and duly acknowledged before a justice of the peace, and recorded in the land records of the town of Newtown, on the 31st day of March, 1845; and did also, then and there, transfer and assign to the plaintiff all his right, title and interest in and to said demised fixtures and machinery, and all his interest in said lease; by virtue of which said gift, grant, bargain and sale mentioned in said deed, and of said transfer and assignment of said fixtures, and machinery, and lease, the plaintiff became and still is seised thereof; that said conveyance, transfer and assignment, so made to him, by said Stoddard, were, then and there, made, with the full knowledge and assent of the defendant, and were by him, then and there, assented to and approved; and the defendant, then and there, on said 29th day of March, attorned to and became the tenant of the plaintiff, under said lease, and of said demised premises and machinery; that although said Stoddard, upon the making and execution of said deed, assignment and transfer, and the plaintiff subsequently thereto, have kept and performed all things on their part to be performed; yet the defendant has not kept and performed any of the covenants and agreements by him made in said indenture; that after the making of said indenture, and during the term thereof, viz., on the 1st day of April, 1845, the sum of 150 dollars of the rent in said indenture mentioned, for one year of said term then elapsed, became due and payable, and was, and still is, in arrear and unpaid to the plaintiff, contrary to the true intent and meaning of said indenture, and of the covenant and promise therein made; and so the defendant, though often requested so to do, has not kept his said covenant and promise so by him made, but has broken the same, and has neglected and refused, and still does neglect and refuse to keep the same, and to pay the rent so due the plaintiff and in arrear as aforesaid, although often requested and demanded.
    To the first count in the declaration the defendant demurred; and the court adjudged it insufficient.
    To the second count, the defendant, after oyer of the indenture of the 15th of February, 1844, between Stoddard and the defendant, and of the mortgage deed of the 29th of
      March, 1845, from Stoddard to the plaintiff, pleaded, 1st, that said indenture was not, at the time of the execution and delivery thereof, nor has it, at any time since, been, acknowledged, by said Stoddard or Walker, before a justice of the peace, or any other magistrate authorized to take the acknowledgment of deeds, to be his free act and deed; nor has the same ever been recorded in the records of the town wherein said estate lies; and that, by said sale and conveyance from said Stoddard to the plaintiff, the leased premises did, before any of the rent or money in the second count mentioned became due and payable, and before any covenant in said lease contained was broken, cease and determine.
    The 2nd plea to the second count, after alleging, that said indenture was never acknowledged or recorded, proceeded thus: “ And said Stoddard, by his deed bearing date the 29th day of March, 1845, did, on the same 29th day of March, for the consideration of 1,500 dollars, without any reservation or exception of said lease or term of years, covenant with the plaintiff, his heirs and assigns, that at and until the ensealing of said deed, he was well seised of the premises therein described as a good, indefeasible estate in fee-simple, and had good right to bargain and sell the same, in manner and form therein written, and that the same was then, viz., at the time of the execution and delivery of said deed, free and clear of all incumbrances whatever; and did also therein and thereby bind himself and his heirs to warrant and defend said granted and bargained premises to the plaintiff, his heirs and assigns, against all claims and demands whatever; which said deed was accepted by the plaintiff; and upon said sale and conveyance, said lease and term of years in the premises in said deed described, did, before any of the rent or money in the second count mentioned became due and payable, and before any covenant therein mentioned was broken, viz., on the 29th day of March, 1845, cease and determine.”
    The 3rd plea to the second count, as to so much thereof as relates to the premises conveyed by said mortgage deed, alleged, that, at the date of said indenture, the defendant was, and thence until on and after the 1st day of April, 1845, he continued to be, the owner in fee of one undivided half of said factory, land and premises in said indenture mentioned, as tenant in common with said Stoddard, until the conveyance hereinafter mentioned by him to the plaintiff, and afterwards, as tenant in common with the plaintiff, and was possessed thereof, during all the time aforesaid, as such tenant in common, and of said demised premises after said conveyance, as such tenant in common, and not otherwise. [It was then averred, as in the preceding pleas, that said indenture had never been acknowledged.] And that said Stoddard did, by a certain other deed, containing the like covenants, and expressed to be for the like consideration as in the deed, before shewn on oyer, give, grant, bargain, sell and convey said factory, and the privileges and appurtenances thereunto belonging, in said indenture mentioned, to the plaintiff, before any of the rent or money in the second count mentioned became due and payable, and before any breach of covenant therein mentioned, viz., on the 29th day of March, 1845, without any restriction or exception of said lease or term of years, or any part thereof ; which last-mentioned deed was then and there accepted by the plaintiff. And said lease and term of years in said deed described did, upon such sale and conveyance, absolutely cease and determine; of which the plaintiff afterwards, viz., on the 1st day of April, 1845, gave notice, to the defendant.
    The 4th plea to the second count alleged, that as to so much of said count as relates to the assignment, or pretended assignment, of said fixtures and machinery, or said attornment by the defendant, to the plaintiff, as set forth in said second count, said Stoddard did not transfer and sell the fixtures and machinery to the plaintiff; nor did he assent to said conveyance or attornment to the plaintiff; in manner and form as the plaintiff in his said second count has alleged.
    To the 1st, 2nd and 3rd pleas to the second count, the plaintiff demurred; and the court adjudged them insufficient. On the 4th plea he joined issue; and thereupon the cause was tried, at Fairfield, February term, 1851.
    On the trial, the plaintiff, for the purpose of proving the assent of the defendant to the assignment made to the plaintiff and the attornment made to him, as alleged in his declaration, called a witness, who testified, that the next day after said assignment, viz., on the 30th day of March, 1845, he, as the attorney of the plaintiff, gave the defendant notice of such assignment, and that he did not recollect that the defendant made any objection thereto; that on the following day, the day previous to that on which the first year’s rent became payable, according to the terms of the lease mentioned in the declaration, the defendant came to the office of the witness, and said, that he could not pay the rent on the day on which it would become due, and wished an extension of time for the payment; and therefore, the witness went to the plaintiff, and informed him of the wishes of the defendant. The plaintiff then agreed to an extension of time for the payment of the rent, for a period of three days. This agreement on the part of the plaintiff, was, by the witness, communicated to the defendant; and he agreed, on his part, to pay the rent to the plaintiff, at the expiration of that time. The defendant thereupon claimed, that the plaintiff, by this evidence, had proved an agreement, by which the rent was to become payable on the 4th day of April, and not on the 1st day, as set forth in his declaration; and consequently had shewn, that there was no breach of the contract declared upon, and therefore he could not recover, in this action; and the defendant prayed the court so to instruct the jury.
    The court did not so instruct the jury, but stated to them, that the only questions for them to determine, were, whether there had been an assignment and transfer of the fixtures and machinery, an assent thereto and an attornment to the plaintiff, in manner and form as alleged by the plaintiff in his declaration, and denied by the defendant in his plea.
    The jury returned a verdict for the plaintiff. The defendant thereupon moved in arrest of judgment; which motion was overruled by the court. He then moved for a new trial, and also filed his motion in error; both of which motions were reserved for the advice of this court.

      Sturges, in support of the motion for a new trial and for the plaintiff in error, contended, 1. That the amendment of the declaration could not by law be allowed. It constituted a new ground of action. The covenant was made with Stoddard; and by the original declaration, the right of action remained in him, when the covenant was broken; and this was the only ground of action. Under the new count, the reversionary estate, with the covenant annexed, constitutes the ground of action. Peck v. Sill, 3 Conn. R. 157. Ball v. Claflin, 5 Pick. 303. Vancleef v. Therasson, 3 Pick. 12.
    2. That the second count of the declaration, is insufficient. First, an assignee of the reversion, at common law, could not sustain covenant for rent: his remedy was debt. The action of covenant was given by stat. 32. Hen. 8. c. 34. Thursby v. Plant, 1 Saund. R. 237. 240. n. 3. 1 Sw. Dig. 362. Co. Litt. 214. a. § 374. 4 Cruise’s Dig. 402. Willard v. Tillman, 2 Hill, 274. Crawford v. Chapman, 17 Ohio R. 449. Secondly, by the conveyance of the land to Baldwin, the plaintiff below, the lease ceased and determined, and the covenant was extinguished, before breach.
    3. That the pleas to the second count are sufficient. First, they allege a conveyance to the plaintiff, not of the reversion, nor of the land subject to the lease, but of a perfect title, which determines the estate of Walker, and his covenant with it. Webb v. Russell, 3 Term R. 393. This case has been recognised as undoubted law. Baker & ux. v. Gostling, 1 Bing. N. C. 19. (27 E. C. L. 292.) Pynchon v. Stearns, 11 Metc. 304. Iseham v. Morrice, Cro. Car. 109. 4 Cruise’s Dig. 271. Zule v. Zule, 24 Wend. 76. Baldwin could have brought ejectment, without entry or notice. 1 Sw. Dig. 93. Wakeman v. Banks, 2 Conn. R. 445. Ludford v. Barber, 1 Term R. 86. Walker could quit, without payment of rent. Simons v. Saltus, 3 Denio, 214. Welles & ux. v. Cowles, 4 Conn. R. 182. Any agreement by Baldwin and Walker, after the conveyance, could not alter the case. Ludford v. Barber, 1 Term R. 86. Partington v. Woodcock, 5 Nev. & Man. 672. (36 E. C. L. 418.) The plaintiff accepted such an estate, as the deed, by its terms, conveyed to him. Fitch v. Baldwin, 17 Conn. R. 161.
    Secondly, the defendant is not estopped from denying the continued existence of the lease. Carvick v. Blagrave, 1 Brod. & Bing. 531. (5 E. C. L. 178.) Blake v. Foster, 8 Term R. 487. Com. Dig. tit. Estoppel. C. F.

    Thirdly, if this were a subsisting lease, Baldwin could maintain an action of covenant against Stoddard. Fitch v. Seymour, 9 Metc. 462. Baxter v. Bradbury, 7 Shep. 260.
    Fourthly, it appears by the third plea, that the plaintiff below elected to determine the lease, and gave notice thereof to the defendant; and that the defendant thereafter held possession only under his own title, and therefore he is not liable. McKay v. Mumford, 10 Wend. 351.
    4. That the motion in arrest should have been allowed; the issue being immaterial. First, the attornment or agreement of Walker, would not enable Baldwin to sue in covenant. It created a new tenancy. Partington v. Woodcock, ubi. sup. More especially is this true, as to the machinery and fixtures. Farewell v. Dickenson, 6 Barn. & Cress. 251. (13 E. C. L. 163.) Fitchburg Cotton Man. Co. 15 Mass. R. 268. Secondly, attornment is rendered unnecessary, by the statutes 4 & 5 Anne, c. 16. s. 9. 10. and 11 Geo. 2. c. 19. s. 11. & seq. 1 Wms. Saund. 234. n. 4. It was never necessary, where the reversion passed by fine, or deed operating by the statute of uses, or by devise. Ib. 1 Term R. 384. 386. Thirdly, verdict does not cure an immaterial issue. 1 Sw. Dig. 781. 1 Chitt. Plead. 693. 2 Wms. Saund. 319. b. n. 6.
    5. That the charge to the jury was erroneous. A contract under seal may be waived, altered or discharged, by a parol agreement. Munroe v. Perkins, 9 Pick. 298. Dearborn v. Cross, 7 Cowen, 48.

      Hawley and Treat, contra,
    remarked in limine, that in this case, it appears, that the plaintiff is entitled to recover, in some form of action, of the defendant, the rent for which this suit is brought. The objections are to the form, and not to the merits, of the action. They then contended, 1. That the allowance of the amendment was no ground of reversing the judgment. In the first place, this point was never raised in the superior court. Rules of Pract. 18 Conn. R. 572. 574. Secondly, the amendments are proper. Stat. 77. Thirdly, if not, the allowance of an amendment is no ground of error. Merriam v. Langdon, 10 Conn. R. 460. 8 Conn. R. 261. 303. Fourthly, the ground of objection to the amendments is not stated, nor the facts regarding their allowance.

      2. That Baldwin, as assignee, could maintain this action in his own name. In the first place, it is to be observed; that this question was not involved or raised, in the defendant’s pleas to the second count or the plaintiff’s demurrer thereto. Secondly, rent is incident to the reversion. Baldwin alone could, therefore, sue for the rent becoming due after the assignment to him. Peck v. Northrop, 17 Conn. R. 219. & seq. and cases there cited. Thirdly, a parol lease, with possession, is good for one year. 1 Sw. Dig. 260, 1. 2 Pick. 271. 14 Mass. R. 491. 1 Pick. 332. Fourthly, the lease in question was good for the term, between the parties and all others who had knowledge. Dyer v. Wheaton, 15 Conn. R. 307. Bush v. Golden, 17 Conn. R. 594. and other cases too numerous to mention. The lease was only voidable, and that by a third party, for whose benefit the statute was made. Stat. 458. § 14. Here, a party to the lease attempts to avoid it, as against a third party. Hodson & ux. v. Sharpe, 10 East, 350. 1 Sw. Dig. 57. Fifthly, Stoddard could convey no greater estate than he had. Rogers v. Moore, 11 Conn. R. 553. Sixthly, Baldwin's electing to determine the lease, if true, would not of itself produce that effect. Besides, the allegation of the plea is, that notice was given April 1st, 1845, after the rent for which the suit was brought was due, by the terms of the lease. Seventhly, there is no variance, as alleged; and if there was, this is the first time it was ever heard of.
    3. That there ought not to be an arrest of judgment for immateriality of issue. For, in the first place, the issue was material; because, the fixtures and machinery were a part of the property originally leased, and for which Walker covenanted to pay rent. But secondly, if immaterial, it was tendered by the defendant, and the plaintiff is still entitled to judgment; for a material issue was formed by the other pleadings. 2 Conn. R. 249.
    4. That the second count was sufficient.
    5. That the charge of the court was correct. The claim made by the defendant was not in issue by the pleadings. Besides, the verdict was just, and a new trial would not change the result.
   Church, Ch. J.

The facts in this case, as developed by the pleadings, appear briefly to be these. Seth Stoddard and the defendant had been tenants in common of the Woolen Factory, lands, machinery, &c., described in the declaration; and on the 15th day of February, 1844, Stoddard, by indenture under the hands and seals of the respective parties, leased his undivided half thereof to the defendant, his co-tenant, for five years, at an annual rent of one hundred and fifty dollars; with other stipulations, by both parties. This lease was not acknowledged; nor had the defendant caused it to be recorded; but the defendant used and occupied under and by virtue of it, as well as under his right as co-tenant. Before the expiration of one year, and before any rent had become due and payable, Stoddard, on the 22nd day of March, 1845, by deed of mortgage, conveyed his interest in the premises to the plaintiff, to secure the payment of fifteen hundred dollars. The first year’s rent became due and was in arrear; and the plaintiff, as the assignee of Stoddard, or as mortgagee, brings this action of covenant to recover it.

The pleadings are unnecessarily prolix and embarrassing; but there are some principles of importance presented by them, which we shall consider; and there are some questions made, of no importance, which we cannot permit to stand in our way, and which we dispose of, by saying, that in their application to this case, we cannot sustain the defendant’s views.

1. The defendant demurred to the first count for special reasons, and it was, by the superior court, adjudged insufficient; so that the questions now considered, arise under the second count and the proceedings had under that.

The first objection which we notice, is, that the second count should be disregarded as constituting any part of the case, because it was inserted in the declaration, in the county court, by way of amendment, which could not by law be made, as it changed the nature or ground of the plaintiff’s action. We do not assent to this view of it. The original count was in covenant, and set forth the indenture as the ground of the action, and averred an assignment of it to the plaintiff, also a notice and a breach, and that the plaintiff sued as the assignee of Stoddard. This count was insufficient, to be sure; but it shewed the nature and ground of the action; and the second count does not shew a different one. It sets forth, more specially, the manner of the assignment made to the plaintiff, and how he became assignee, not of the lease merely, but of the term—the reversion; but it does not introduce a new cause of action.

2. Perhaps, the most interesting question here is, whether this plaintiff, as an assignee of the rent and reversion, if indeed he be such, can sustain this action of covenant, in his own name, for the arrears of rent falling due after the assignment? That, by the antient common law of England, an assignee, in such case, could only maintain an action of debt, we suppose, must be admitted. 1 Chitt. Pl. 114. 1 Sw. Dig. 360. Cro. Car. 109. Thursby v. Plant, 1 Wms. Saund, 237. and notes. But this state of the law was changed, by Stat. 32. Hen. 8. ch. 34., as it was found to be embarrassing in its practical effects. It would be found to be equally so here, if adopted by us. We have not yet adopted it, either by judicial recognition, or legislative enactment. Many of our sister states have, by constitutional or legislative provisions, recognised the common law of England as a part of their codes of law. We have not. We have, in our judicial practice, adopted so much of the common law as was operative as law, in the father-land, when our ancestors left it, and which was adapted to the new state of things here, under our colonial condition. This was our inheritance. But no abrogated or repealed law of England was considered as existing or binding here: the colonists brought no such law with them; they inherited no such law.

We ought not to introduce the principle for which the plaintiff in error contends, into our system. It is unnecessary, and, as we think, inconsistent with other well established doctrines of the common law regarding the rights and liabilities of assigns. An assignee of a lessee may sue in covenant, and is liable in the same form of action. There can be no sufficient reason why the assignee of a lessor should stand differently related to other parties to the lease, and especially why he may not sue in covenant for rent falling due in his own time. And the case is stronger, if there has been an assent or attornment, as it is called, in these pleadings, by which the priority of contract is supposed to be transferred. Thursby v. Plant, 1 Wms. Saund. 237. and notes. 1 Chitt. Pl. 114. 1 Sw. Dig. 361. Allen v. Bryan, 5 Barn, & Cress. 512. (11 E. C. L. 292.)

3. The burden of the second, third and fourth pleas to the second count in the declaration, is, that the lease or indenture from which this action arises, was neither acknowledged nor recorded; and therefore, that the plaintiff holds the premises, as assignee or mortgagee, irrespective of the lease, and not as owner of any reversion, to which rent is attached. This objection, it seems to us, does not come well from the defendant, so long as the plaintiff recognises the lease as a valid and subsisting one, and makes his claim under it. For one year, it would be good, without being acknowledged or recorded—for the year in which this rent became payable. 1 Sw. Dig. 132. The lease was not void, for the reasons suggested by the plaintiff—it might be avoided by such third persons as had a right and an interest in doing so, as a lease for a longer period than one year; but no one makes claim against it, but the defendant, who has occupied under it, and by whose neglect it was not recorded.

The lease of Stoddard to the defendant, therefore, as between these parties, must be treated as an effective one, and as leaving, when made, a reversion in Stoddard. By his mortgage to the plaintiff, this reversion, as a subsisting legal interest, was conveyed or assigned to the plaintiff, unless he elected to treat it as void. This he has not done, but claims, as he may, his right as mortgagee or assignee to the rent incident to such reversion. 2 Cruise’s Dig. 111. Moss v. Gallimore, Doug. 275. 2 Sw. Dig. 170. Fitchburgh Man. Co. v. Melven, 15 Mass. R. 268. If the lease had been executed after the mortgage to the plaintiff, he could not, as mortgagee perhaps, have any remedy for the recovery of this rent, without attornment, for want of legal priority. Partington v. Woodcock, 5 Nev. & Man. 672. (36 E. C. L. 418.) McKircher v. Hawley, 16 Johns. R. 289. The defendant relies much on the case of Webb v. Russell, 3 Term R. 393. as sustaining his claim, that this plaintiff has no reversionary interest. But in that case, the covenant to pay rent was made with a mortgagor, and the lease by a mortgagor, in whom, as the court said, there was no legal interest, and who was, therefore, to be treated as a stranger to the legal estate. Here, if the plaintiff cannot sue for and recover the rent, no one can, if the claim of the defendant is regarded. If the lease ceased and determined, when the mortgage was made, Stoddard had no longer any claims under it; and if the plaintiff took no reversionary interest, he can claim no rent, and the defendant goes free.

The defendant, to be sure, claims, that his third plea to the second count, alleges that the plaintiff elected to determine the lease, and gave the defendant notice of it, and of course, that he did not recognise the existence of any relationship of landlord and tenant as existing, but claimed the rights of a tenant in common only, under his mortgage deed. But such is not the legal import of the averments in that plea. The plea avers the fact of the lease, the want of acknowledgment, the mortgage and the notice; and these are, in this part of it, the only traversable facts it alleges. The further averment, that the defendant was thereafter in possession, holding as tenant in common with the plaintiff, and not otherwise, is an averment of a legal deduction or inference only, and not traversable. The words not otherwise, are not to be regarded as any traverse of any fact alleged by the plaintiff, in the second count. And the further allegation, that upon the acceptance of the mortgage deed, the lease did absolutely cease and determine, is of the same character; and whether it did so cease and determine, is an inference of law, and not an independent fact averred.

The view we have taken of the validity and legal effect of the lease, as against the defendant, and of the operation of the mortgage deed, necessarily shews all these pleas in bar, to which there has been a demurrer, to be insufficient.

4. And yet the defendant moves in arrest of the judgment, on the ground that the second count is insufficient, and the issue joined upon it immaterial; and this, because it alleges an assignment to the plaintiff of the machinery in the factory, which being personal estate, the plaintiff, as assignee, can have no such estate in reversion in it, as to claim rent, by reason of it: that rent issues out of real estate only.

This property is described as machinery, fixtures, appurtenances. Machinery in a factory, has been adjudged to be personal estate, when it is not firmly attached to the building, and can be moved without injury to it, or to the machinery itself. Swift & al. v. Thompson, 9 Conn. R. 63. But machinery used in a factory is not necessarily personal property; and whether it is so, depends upon the manner of its connexion with the realty. And where this is not shewn, it may as well be presumed, that it was so affixed as to constitute it, while thus connected, a part of the building, as otherwise. But however this may be, here was a lease of the factory, machinery, fixtures, &c., as one entire subject, at an entire rent, and the parties treated the whole as one thing, for the use of which rent was to be paid and received. Each part must be used with the other, or the whole was useless.

The allegations in this count of an attornment, or an agreement by the defendant to pay rent to the plaintiff, after the assignment to him, are pertinent; and so is the averment, that “the said Stoddard never sold or assigned the machinery and fixtures to the plaintiff;" and these form a part of the issue joined and put to the jury, in the case, under this count. The allegation of an attornment was not equivalent to that of another tenancy, but that the defendant became tenant and occupied under the lease, and not merely as a tenant in common with the plaintiff. The fact of attornment was a recognition, by the defendant, of the reversion in the plaintiff.

5. The case went to the jury upon the issue in fact, closed upon the plea of the defendant. And now, the defendant insists, that the judge mistook the law in his charge. After having been so long involved in a legal mist, made by these pleadings, it would not be strange, if this were so.

This claim of the plaintiff rests upon the refusal of the court to instruct the jury, that the plaintiff’s proof amounted to an extension of the time for the payment of the rent; and therefore, that the rent did not fall due until the 4th day of April, instead of the 1st day, as alleged in the declaration.

The evidence was offered to prove, and did prove, the facts alleged by the plaintiff, and which were specially denied, by the defendant, in that part of his special plea, on which he tendered the issue to the plaintiff; which issue was, whether there had been an assignment of the machinery and fixtures to the plaintiff, and an assent and attornment by the defendant. Whether the time of payment had been extended, was not in issue here. The defendant had made no such claim, but denied that he was liable to pay, at any time.

Besides, the willingness of the plaintiff to accept the rent, on the 4th of April, as expressed to his own attorney, amounted to no obligation, on his part: the assent was merely for the accommodation of the defendant, without any legal or moral consideration ensuing to the plaintiff.

We are satisfied, that the defendant has no legal ground of complaint; and that the judgment ought neither to be arrested, nor a new trial granted.

In this opinion the other Judges concurred.

Judgment affirmed; New trial denied.