text:
    Croswell, Trustee vs. Allis et al.
    Where household furniture is mortgaged, and possession thereof retained by the mortgagor, under the provisions of the statute, [Rev. Stat., Title 20, See. 4,] which provides, that “ whenever the occupant of any dwelling-house, having a family, shall mortgage the household furniture used by him in housekeeping, by a deed in which such furniture shall be particularly described, and which shall be executed, acknowledged, and recorded, in all respects as mortgages of lands are required to be, such mortgage shall be good and effectual, although the mortgagor shall retain possession of such mortgaged property; ” such household furniture does not lose the immunity conferred upon it by the statute, in exempting it in such case from the necessity of a change of possession, by reason of the fact that, in addition to its use by the family of the mortgagor, it also constitutes the furniture of a hotel kept by the mortgagor, and in 'which he resides with his family.
    A mortgage of household furniture purported to convey a specified number of different kinds of furniture, not otherwise described than by a general designation and as contained in the hotel of the mortgagor, there being at the time a greater number of some of the articles and a less number of others, owned by the mortgagor, and contained in his hotel: — Held, that the mortgage was good as to those articles that were less in number than those described in the mortgage, and that, as to the others, it was void for uncertainty.
    Where a mortgage was executed on the 21st day of July, to secure the mortgagee for an endorsement made for the accommodation of the mortgagor on the 13th day of July, and in compliance with a promise of the mortgagor when he requested such endorsement, that he would as soon as he conveniently could thereafter, make such mortgage, but was not acknowledged and delivered until the 31st day of July, and was not left for record until the Sth day of August, and within sixty days after said 21st day of July, the mortgagor went into insolvency; it having been found by the court that, although the mortgagor was embarrassed and insolvent at the time, yet in procuring said note to be discounted, and in executing said mortgage, he did not act in view of insolvency, and that the éxeeution thereof was not delayed, nor the same withheld from record, for the purpose of concealing the existence thereof, or for any other fraudulent purpose ; it was held, that such mortgage was not invalidated by any of the provisions of the act " for the relief of insolvent debtors and the more equal distribution of their effects among their creditors.”
    This was a petition in chancery, brought by Frederick Croswell, as trustee in insolvency of the estate of Salmon W. Allis, against Josiah Allis, William H. Elliott and others.
    The petition alleged that the petitioner was greatly hindered and embarrassed in the settlement of said estate, by reason of claims made upon a portion of the personal estate by the respondents severally, the facts with regard to which he was unable fully to ascertain ; praying for disclosures from the respondents, an enquiry by the court into the validity of certain pretended mortgages and conveyances, and an order for such a disposition of the property in question, as should be necessary to protect the interests of all parties and enable the petitioner to settle said estate; with a general prayer for relief.
    The case was referred to a committee, whose report embraced the following facts:
    On the 13th day of July 1854, the said S. W. Allis made his promissory note, dated on said 13th day of July, for the sum of two thousand dollars, payable sixty days after date, to the order of William H. Elliott, at the New Haven county bank, and applied to said Elliott to endorse said note for his accommodation, and to enable him to get the same discounted at said bank; and to induce said Elliott to endorse said note, he promised to secure him for so endorsing, by a mortgage on furniture in the hotel then kept by him and more particularly hereinafter described, and at the same time represented to said Elliott, that there was to be a meeting of the directors of said bank on that day, and that he wanted to present said note for discount at such meeting, and promised said Elliott that if he would then endorse said note, he would as soon thereafter as he could conveniently get it drawn, execute and deliver to him said mortgage. Said Elliott relying on the representation and promise of said Allis as aforesaid, endorsed said note, and the same was on said 13th day of July, discounted by said bank for said Allis.
    Afterwards and in pursuance of said agreement, said Allis executed and delivered to said Elliott the mortgage more particularly hereinafter described. Said mortgage was drawn up and signed and sealed by said Allis on the 21st day of July 1854, but by mistake dated on the 21st day of August. The same was acknowledged by said Allis on the 31st day of July, and immediately thereafter was delivered by said Allis to said Elliott, who on the 8th day of August 1854, lodged the same for record with the town clerk of the town of New Haven, but the execution of said mortgage was not delayed, nor was said mortgage after its execution withheld from record, for the purpose of concealing the existence thereof, or for any other fraudulent purpose.
    When said note became due, said Allis did not pay the same or any part thereof, and it was protested for non-payment, and due notice was given to said Elliott as endorser, who thereupon paid the same to said bank, and the amount so paid by said Elliott with the interest thereon, was found to be justly due from said Allis to said Elliott.
    On said 13th day of July 1854, said Allis was, and for a long time before, had been, and until the 14th day of September 1854, continued to be, engaged in the business of keeping a hotel in the city of New Haven, called the “ Tontine,” and occupied for that purpose three distinct dwellings contiguous to each other in the same block of buildings, one called the Tontine building, one the Woodward house, and one the Hitchcock house. Said Allis and his family, which consisted of his wife, daughter and sister, had their private parlor and received the family visitors in the Hitchcock house, and took their meals in the Tontine building. Said Allis, his wife and daughter slept in the Hitchcock house, and his sister slept in the Tontine building. The washing of the family, and of the hotel boarders, was done together in the Tontine building. The linen was used over the whole house as occasion required, and the three buildings were all used and occupied for the purposes of a hotel, the Hitchcock house being to some extent reserved for the better class of hotel boarders.
    The principal part of said furniture was in the Ton-tine building, and the rest of it in the other two buildings, and all said furniture was used in keeping said hotel, and by said Allis and his family, as occasion required. Said furniture remained in said hotel without any material change until the same was attached by the creditors of said Allis, as is hereinafter stated.
    There were in the Tontine building seventy feather beds, ninety-one mattresses, eighty-nine bedsteads, thirty-five bureaus, two hundred and twenty-nine chairs, eighty tables, fifty-seven wash-stands, and one thousand three hundred and ninety-four yards of carpeting ; and in the Woodward house, eight feather beds, sixteen mattresses, seventeen bedsteads, four bureaus, twenty-four chairs, eight tables, six wash-stands and one hundred and ninety-five yards of carpeting ; and in the Hitchcock house, seven feather beds, five mattresses, eight bedsteads, seven bureaus, forty chairs, fifteen tables, six wash-stands and three hundred and eight yards of carpeting; and there were in the hotel from three hundred and sixty-seven to four hundred cups and saucers and four hundred and eighty-three plates, and bedding about in proportion to the beds.
    On said 13th day of July 1854, said Allis was, and continued to be up to the time of his failure, as hereinafter stated, in embarrassed circumstances, and indebted to his creditors in an amount much exceeding his means of paying, but in procuring said note to be discounted, and in executing said mortgage he did not act in view of insolvency. At that time and until after the 8th day of August 1854, he expected to go on with the business of keeping said hotel, and did continue said business until the 14th day of September 1854, when all his visible property was attached by his creditors, and afterwards Lucius Gilbert of said New Haven, brought an attachment, on which regular legal proceedings were had according to the provisions of the act “for the relief of insolvent debtors, and for the more equal distribution of their effects among their creditors,” and on the 21st day of September 1854, upon the petition of said Gilbert to the court of probate for the district of New Haven, the petitioner was appointed trustee of the property of said Allis for the benefit of his creditors. The petitioner accepted the trust, and gave bonds according to law, and as such trustee, immediately thereafter took possession, and made and returned to said court of probate an inventory, of all the furniture then in said hotel, being the same furniture above described.
    Immediately upon the petitioner’s taking possession of said furniture, Josiah Allis, the brother of the said S. W. Allis, notified the petitioner that he, said Josiah, was the owner of a part of said furniture, and the said S. "W. Allis, also insisted that the furniture so claimed by the said Josiah was the property of said Josiah, but the petitioner proceeded to take possession of and inventory all said furniture as the property of said S. W. Allis.
    Afterwards, by the written request and direction of the creditors of said S. W. Allis, the petitioner paid to the said Josiah, the sum of one thousand dollars, and in consideration thereof, the said Josiah released to the petitioner as trustee as aforesaid, all his interest in said furniture.
    The committee further found that the petitioner had sold all the furniture inventoried by him and converted it into money.
    The descriptive part of the mortgage of the said S. W. Allis to the said Elliott, which is all that is important for the purposes of the present case, is as follows:
    “ One hundred beds, one hundred bedsteads, one hundred mattresses and bedding, two hundred chairs, one hundred tables, two thousand and five hundred yards of carpeting, forty bureaus, seventy-five wash-stands, one hundred knives and forks, fifty dozen plates and cups and saucers, &c. Said articles now being in the Tontine in said New Haven, and now occupied by myself and family, and said articles are used in keeping said house, and all of the value of two thousand dollars.”
    At the term of the superior court holden in the county of New Haven, in December 1855, the report of the committee was accepted, and the questions of law arising thereon, reserved for the advice of this court.

      Blackmtin and Peck, for petitioner.

      Í. The property named in the deed, was not subject to mortgage as household furniture, under the provisions of section 4th, of the act against fraudulent conveyances. The language of the statute is, “ whenever the occupant of any dwelling-house having a family shall mortgage without the real estate the household furniture .used by him in housekeeping,” &c.
    The intention of the statute is to give every person engaged in housekeeping, the opportunity to mortgage his household furniture, without parting with the possession which might subject his family to discomfort or distress. It extends only to furniture used in housekeeping, and is confined to a pérson having a family.
    A person entering into the business of keeping a hotel, is not necessarily one who has a family ; nor even if he has a family does that necessarily form any part of the establishment. A man’s family is his household. The place where all household furniture used by him in housekeeping is located, may be, and often is entirely distinct from his hotel, where he pursues the business of keeping boarders and entertaining travelers. The furniture used for keeping a hotel may therefore be entirely a distinct thing from the furniture used in housekeeping.
    It is true the word “ family” maybe extended to mean all persons living in one house under one head, but the question is, how did the legislature intend it should be understood in this statute ? Did it mean to protect the possession of property, used for family and domestic purposes, or that invested in business in keeping a hotel ? If the latter, why the restriction in the statute, to a person having a family? If it Was the intention to allow household furniture, however used, to be protected, this restriction was unnecessary.
    The third section of the statute providing for the mortgage of household furniture with the real estate, uses language which shows still further the meaning of the fourth section. The language there is “ the owner of a dwelling-house having a family.”

      Now although a hotel is in one sensé' a dwelling-house it is never understood as meaning the same thing. And the fact that these restrictive words are used, shows that the operation of the statute was intended to be limited. If limited, it may be asked, to what ? If extended to hotel keeping, there is no use to which household furniture can be put which is not covered by the statute.
    2. The mortgage to W. H. Elliott is so uncertain and indefinite in its description of the property, that it is impossible to tell what property if any is conveyed by it.
    The only designation as to the situation of the property, is that it is in the Tontine in New Haven. No other description is given than the general name of each class of articles and even that is so indefinite as to furnish no idea what is meant.
    The number of articles in the Tontine as reported by the committee, bears no proportion to the number mortgaged, and there is nothing to indicate which of them are included in the conveyance. Not even the rooms where the property is used are mentioned. They are also of different values.
    Upon which then can the trustee calculate, to know the value of the property held by the mortgage lien. And should Elliott make demand of him, what would it be his duty to give up ?
    This point was directly decided by Btorrs, J., in the case of Foot and another in New Haven county, where the court held that a conveyance of a certain number of articles of household furniture in a house, there being a larger number there and nothing to indicate which were conveyed was void for uncertainty.
    3. It is found that this endorsement was made on the 13th day of July 1854, that the mortgage was executed on the 31st day of July, and left for record on the 8th day of August following.
    This endorsement was “not made at the time when the .security was taken,” and it was in fact “ withheld from record” a further term of eight days after it was-finally exeeuted, and' this when both parties resided in New Haven, and within a quarter of a mile of the town clerk’s office.
    Now no matter what may have been the intention of the parties, this was in fact contrary to the seventh section of the insolvent act, page 515, revised statutes.

      Dutton and Beach, for respondents.
    First. The property mortgaged was within the provisions of section 4th of the act against fraudulent conveyances. Rev. Statutes, page 571.
    The mortgagor was the occupant of a dwelling-house. He had a family, and the furniture was used in housekeeping.
    The fact that the property was also used in the business of keeping a- hotel does not destroy its character as household furniture.
    1. It was the nature and not the amount of the property the legislature intended to recognize, in exempting it from the operation of the act against fraudulent conveyances.
    2. If the occupation of the owner of the furniture is such, that he can pursue it in the dwelling-house where his furniture is located, such occupation would not of itself change the nature of the property.
    3. Nor will the additional fact that his business is such, as to permit him to avail himself of the property in a mode consistent with its use as household furniture, change its nature. It still remains houshold furniture within the letter and the spirit of the statute.
    Second. The conveyance is not invalidated as to any of the classes of property mentioned in it, by reason of its purporting to convey a greater or less number of articles in that class, than was contained in the house.
    1. Where the number of the articles as descibed in the mortgage exceed the quantity contained in the house, no uncertainty can exist. And the value of this class is abundantly sufficient to satisfy the mortgage debt.
    2. The number described in the deed falls short of the actual quantity in some instances; but the deficiency is so small when compared with the large amount conveyed, that it clearly indicates the intention of the parties to include the whole, and a want of intention to separate a part from the whole. Barry v. Bennett, 7 Met. R., 354.
    3. No practical difficulty has resulted from the claimed uncertainty. The committee do not find that the trustee has been embarrassed in designating the property mortgaged; on the contrary he has taken the whole into his possession and sold it.
    Third. The mortgage is not invalidated by any of the provisions of the insolvent act.
    The committee find expressly that it was not made in view of insolvency. Though not made at the same time with the endorsement, in fact, yet the law will so regard it. It was all one transaction. The endorsement was made on the faith of the mortgage, and it is found that the execution was not delayed, nor the mortgage withheld from record, for the purpose of concealment, or for any other fraudulent purpose.
   Storrs, J.

The only question made before us in this case, respects the validity of the mortgage from S. W. Allis to Elliott. Its form is confessedly unexceptionable; but various objections to it have been taken by the plaintiff, arising on the facts found by the committee These objections will be examined in the order in which they have been presented.

1. It is found that the mortgagor remained in possession of the property embraced in the mortgage, from the time of its' execution to the appointment of the plaintiff as trustee; and the plaintiff claims, first, that that circumstance, by the settled law of this state, in regard to the unexplained retention of the possession of personal property by the vendor, rendered the mortgage fraudulent and void. In answer to this objection, it is claimed that the mortgage is rendered valid by the provisions of the fourth section of the act against fraudulent conveyances. (Stat. 571, tit. 20,) notwithstanding such retention of possession by the mortgagor That section provides that “ whenever the occupant of any dwelling-house, having a family, shall-mortgage the household furniture used by him in housekeeping, for the security of any debt or duty, by a deed in which such furniture shall be particularly described, and which shall be executed, acknowledged and recorded in all respects as mortgages of lands are required to be, such mortgage shall be good and effectual, although the mortgagor shall retain possession of the mortgaged property.” As it appears that the mortgagor in this case was the occupant of a dwelling-house, and had a family of his own, exclusive of the guests who were entertained in his house, and that the property mortgaged was household furniture, there is no doubt, and indeed it is conceded, that the conveyance fulfils all the conditions which are required by this provision in order to entitle it to the immunity of being free from the necessity of a change of the possession of the property, and to render the conveyance valid, although there was no such' change of possession, unless it be that which requires that the furniture mortgaged should be used by the mortgagor in housekeeping. Whether that provision was complied with in this particular, is the question before us. On this point, the question is reduced by the finding of the committee, within much narrower limits than those embraced by the argument of the plaintiff. On the facts found, it is not necessary to decide the question which has been raised, whether the statute applies to a mortgage of household furniture by a person who, whether having a family of his own or not, uses it exclusively in the business of keeping a hotel. It appears from the finding, that the rooms in the premises occupied by the mortgagor as a hotel, which formed only one establishment, although originally consisting of several distinct dwelling-houses, and also the furniture therein which was embraced in the mortgage in question, was used indiscriminately by the family of the mortgagor, consisting of his wife, daughter and sister, for family purposes, as they had occasion, as well as for the accommodation and entertainment of the guests of the hotel. It is quite obvious that if this furni-' ture were not used for the latter purpose, it would be embraced within the statute, and the question therefore is, whether the use of it for that purpose deprives it of the immunity which the law would otherwise confer on it, in dispensing with the necessity of a change of possession. It is to be observed that the furniture to which the statute applies, is not limited by it in respect to its quantity, quality or value; the use made of it by the mortgagor, is the only characteristic which is to determine whether a change of possession must accompany a mortgage of it. Now it can not properly be said, that the use of it for the purposes of a hotel deprived it, in this instance, of the character of furniture used by the mortgagor for his own domestic purposes, although it is possible that it was used to a less extent for the latter purposes, than if it had not also been used for the other; but the extent of its use is not made the criterion by which it is to be determined, whether the statute applies to it. It has been suggested that the statute should be held to embrace only furniture which is used by the mortgagor exclusively for his own family housekeeping. We do not feel at liberty to give it such a restricted operation. It is remedial in its nature, and its design is to be mainly regarded in its construction. It is very clear that the legislature was induced, by the fourth as well as the next preceding section of this law, to exempt a mortgage of the articles of personal property therein specified, on its being executed and made public by its being recorded as therein provided, from the general rule applicable to conveyances of personal property, by the consideration that those articles are such as are constantly used by the owner and constitute the means of his livelihood, and that he would necessarily be subjected to great and peculiar inconvenience and injury by being deprived of their use. We think that the furniture in question was embraced by the reason and policy, as well as by the letter, of the statute, and that the mortgage of it was unexceptionable on this ground.

2. The mortgage in question purports to convey different kinds of furniture, and a specified number of each kind. It appears that it specified a greater number of some of these kinds, and a less number of others, than the mortgagor owned. The plaintiff objects that it is therefore void as to both of these kinds for indefiniteness and uncertainty as to the things conveyed. This objection is groundless as to those classes of which a greater number of articles is mentioned than the grantor possessed. Omne majus continet in se minus. The conveyance comprehended, and was therefore sufficient to pass, all the articles of those classes which he owned, and beyond that was simply inoperative. But in regard to those classes of which he owned a greater number of articles than that specified to be granted, we are of opinion that the conveyance is so indefinite and uncertain that none of them passed by it. The question before us depends on the terms of the conveyance alone. There was no delivery, separation or designation of the particular articles intended to be conveyed, nor any act accompanying or connected with the conveyance, by which they can be ascertained. In this respect the case is essentially different from those cited by the defendant. The inventory shows that the articles, of which each of these classes was composed, differed in their quality, and value. How then could it be determined^ by the mortgage itself, which of them were intended to be conveyed 1 And it is not an instrument where by a true construction of its terms, either the grantor or grantee was at liberty to select the articles which should pass by it. If it were, there had been no such selection in this case.

3. We are strongly inclined to the opinion that as against the plaintiff, the mortgage in question, under the circumstances in which it was executed, is not liable, within the true meaning of the seventh section of the act of 1853, for the relief of insolvent debtors, &c. (Statutes, p. 515,) to the objection made by the plaintiff, that it was not taken at the time when the endorsement, which it was intended to secure, was made. But it is not necessary to decide that point, because it is found that it was not made by the mortgagor with a view to his insolvency, or while he was in failihg circumstances, according to the construction which we have put on that act, and therefore it is not one of those conveyances to which the clause above alluded to in the seventh section of it, applies. (Utley and al. v. Smith and al., 24 Conn. R., 290.) Nor is this conveyance liable to the objection raised against it under the last clause of that section, for it is found that it was not withheld from record for the purpose of concealing its existence; and there is no claim that the mortgagor was permitted to remain in possession of the furniture for a like purpose.

The superior court is therefore advised, that the mortgage should be sustained as to those several classes of articles where the number of them owned by the mortgagor did not exceed that specified in the conveyance, and held void for the residue.

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

Decree accordingly.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    Watson vs. Atwood.
    Where, on the trial of an action for fraud, in which the plaintiff claimed, that induced by false representations of the defendant, as to the title of the defendant’s son to certain lands, he had accepted a deed of such lands from the defendant’s son, and conveyed to him his own lands in exchange therefor, the deeds in both cases containing the usual covenants, the defendant offered evidence to prove, both by way of defense to the action and in reduction of damages, that the plaintiff at the time of such exehange, had no title to a part of the lands conveyed by him; it was held, that such evidence was inadmissible
    Where, on such trial, the defendant claimed that the plaintiffhad been culpably negligent, in not searching the public records, and therefore was not entitled to recover for any defect of title which might have been discovered on such search, whatever fraudulent representations or concealments the defendant might have made; and the court instructed the jury substantially, that it was the duty of the plaintiff to exercise ordinary care to ascertain the title to the lands he was about to purchase, and that if they should find that he did not, their verdict must be for the defendant: it was held, that the defendant had no cause to complain of the charge, as it was much more favorable than he had a right to require.
    A deed of the comptroller of the state of New York, purporting to convey lands situated in that state and sold for taxes, and which by the statute of that state is made presumptive evidence that he had authority to sell and convey the land described in such deed, and that all proceedings required by law to be had prior to the execution of such conveyance, have been had, is admissible for the same purpose, and has the same effect, in the couits of this state, as in those of the state of New York.
    This was an action for fraud. The plaintiff in his declaration alledged that he and. the defendant entered into an agreement in writing, for an exchange of certain lands situated in the state of New York, and that the defendant, in carrying said agreement into effect, falsely and fraudulently represented and affirmed to the plaintiff, that the lands described in the agreement as belonging to him, were held in trust for him by his son John B. Atwood, who was the owner thereof in fee simple, and by his deed could give the plaintiff a good title to the same, and that the plaintiff relying upon the truth of those representations, was induced to accept the deed of the son, purporting to convey to the plaintiff the defendant’s lands, in fee simple, with the usual covenants ; and that at the request of the defendant, he, the plaintiff, conveyed to the said John B. Atwood the plaintiff’s lands with the usual covenants.
    The plaintiff further averred that a large portion of the lands described in the deed of John B. Atwood, were not owned by him, and some of them had previously been sold for taxes ; that at the time of executing said deed he was destitute of property, and was, and still remained wholly irresponsible on his covenants; all which was well known to the defendant.
    Upon the trial of the case, before the superior court at the March term 1856, the defendant claimed that the lands conveyed by his son to the plaintiff, were owned by the son, and not holden in trust, and that in making the agreement with the plaintiff, he acted as the agent of his son. And as well by way of defense to the action, as in reduction of damages, he offered evidence to prove that a part of the lands described in the plaintiff’s deed to John B. Atwood, were not owned by the plaintiff at the time of the execution of the deed. But it was not claimed that the plaintiff was insolvent, or not fully responsible for any damages that the said John B. Atwood might recover against him on the covenants in the deed, or otherwise, by reason of any alleged misrepresentations or deficiency in the quantity of land conveyed. The plaintiff thereupon objected to the admission of the evidence, and the court excluded it.
    The plaintiff for the purpose of showing that John B. Atwood had no title to a part of the lands embraced in his deed to the plaintiff, offered in evidence a duly authenticated copy of a deed from the comptroller of the state of New York, purporting to have been given upon the sale of those lands for taxes, accompanied with the revised statutes of that state relating to such conveyances, in which it was provided that every conveyance of land sold for taxes, executed by the comptroller, shall be presumptive evidence that he had authority to sell and convey the land described in it, for arrears of taxes charged therein, and that all proceedings, things and notices, required by law to be had, done, or given, prior to the execution of the conveyance by the comptroller, have been had, done and given, as required by law, but such presumption may be rebutted by any legal evidence, &c.
    To the introduction of the deed in evidence, the defendant objected, on the ground that the plaintiff must show that all the legal steps had been taken which authorized the conveyance, but offered no evidence to show that such steps had not been taken. The court overruled the objection and admitted the deed as presumptive evidence of the sale, and the regularity of the prior proceedings.
    It was not claimed by the plaintiff that he had caused any - search to be made of the county records in relation to the title of the lands described in the deed to him, but had relied upon the representations made by the defendant.
    The agreement for the exchange of lands was made in the town of Olive, in the county of Ulster, in which the lands were situated, and fourteen miles from Kingston, where the records of that county were kept. One witness, an attorney at law, testified that it had not been the practice in that county for a person to purchase lands, without causing a search of the county records to be made, either by his attorney or the county clerk. Two other witnesses testified, that it was very unusual for persons residing in the town of Olive, or elsewhere out of the town of Kingston, upon taking a conveyance with warranty, to incur the expense of a search of the land records of the county ; that such searches were very expensive and attended with much delay, and in that case, the expense would have been large, and the time occupied from two to six days. One of them further testified, that, at the time of the exchange of deeds, the defendant expressed a desire to have the business transacted without delay, as he had barely time to reach Kingston in season for the boat, on his return to Connecticut.
    The defendant thereupon insisted that the plaintiff had been culpably negligent, and was not entitled to recover, by reason of any defect of title, which might have been discovered on such search, whatever might have been the fraudulent representations or concealments on the part of the defendant, and asked the court so to charge the jury.
    Upon this part of the case, the court instructed them, that it was the duty of the plaintiff to have exercised ordinary care and caution to ascertain the title of the land he was about to purchase, and if he did not, he was in fault. But that it was a question of fact, for their determination from all the evidence before them, whether there was any want of care, or whether there had been any culpable negligence on the part of the plaintiff, in omitting under all the circumstances, to incur the expense and delay of a search, and in relying on the representations made by the defendant, and unless they should so find, their verdict must be for the plaintiff, if they should find the other issues in his favor, otherwise for the defendant.
    The jury having returned a verdict in favor of the plaintiff, the defendant moved for a new trial, and the questions of law were reserved for the advice of this court.

      Blackman and E. S. Ives, in support of the motion.
    1. The' deposition offered by the defendant should have been received in evidence to show the character of the transaction on the part of the plaintiff, and to affect the question of damages.
    This deposition shows fraudulent conduct ori the part of the plaintiff, material to the issue, which should have been submitted to the jury.
    2. The record of the comptroller’s deed should not have been submitted to the jury until the evidence had first been presented to them, showing that the various legal steps had been taken by the comptroller, authorizing him to execute a deed of the land described in the record of his deed on file. 1 Revised Statutes N. Y., pp. 53, 391, 407, 8, 9, 411.
    3. It appearing in evidence that the records of the title of these lands, and of any incumbrance upon them for taxes unpaid, were more accessible to the plaintiff than to the defendant, in not searching them he was guilty of such negligence and indifference to the ordinary means of information as justly to debar him from recovering in this action, upon the claim that the defendant did know, and that he the plaintiff did not know that the title was not in John B. Atwood. 2 Kent’s Com., 484.

      Baldwin and Westbrook of New York, against the motion.
    I. The deposition was properly rejected as irrelevant.
    1. The defendant set up in his notice and testified, that the lands agreed to be exchanged with the plaintiff, belonged to his son John B. Atwood, for whom he acted as agent. The fraud sought to be proved was an injury to John B. Atwood, and not to the defendant.
    2. A set-off of damages on that account if allowed in this action to the plaintiff, would be no bar to an action by John B. Atwood.
    II. The copy of the record of the comptroller’s deed was properly admitted. 1. It was not objected to on the ground that the original deed should have been produced; nor on the ground that the taxes had ever been paid ; but on the ground that the plaintiff must first show that all the legal steps to authorize the comptroller to execute the deed had been taken.
    On this part of the case the plaintiff had to prove, 1. The fraudulent representations by defendant, that the taxes were paid &c., when he knew they were not; 2. That plaintiff had lost his title by reason thereof.
    The first he proved by other evidence. To prove the second, he properly had recourse to the law of the situs, and to the deed of the public officer in behalf of the state on record there, which by that law is expressly made “ presumptive evidence,” that the sale and all proceedings prior thereto from and including the assessment, &c. were regular. And the case finds that the defendant neither offered any evidence to the contrary, nor claimed that in point of fact all such steps had not been taken.
    The statute was enacted to obviate the inconvenience of the old law, by making the comptroller’s deed presumptive evidenec. Curtiss v. Follet, 15 Barb., 338. Hand v. Ballou, 2 Kernan., 541.
    The production of that record showed, that by the laws of the situs, the plaintiff had been presumptively deprived of his land, by a valid sale for pre-existing taxes.

      “ In relation to immovable property inasmuch as the rights and titles thereto are generally admitted to be governed by the law of the situs, and as suits and controversies touching the same ex directo, belong to the forum of the situs, it would seem to be a just, if not án irresistible conclusion, that the law of evidence of the situs, touching such rights, titles, suits and controversies must and ought exclusively to govern in all such' cases.” Story Conflict of Laws, sec. 630 b. Tulloch v. Hartley, 1 Y. & M. New Cas. in Cha., 114, 115.
    III. The charge of the court that it was the duty of the plaintiff to have exercised ordinary care and caution to ascer tain the title of the land he was about to purchase, ahd that if the jury should find from all the evidence before them that he did not, their verdict must" be for the defendant, was at least as favorable to the defendant as he could require.

      He was not bound to incur the expense and delay of an examination of the records of the county, but had a right to rely on the representations of the defendant. Monell v. Colden, 13 Johns, 395. Culver v. Avery, 7 Wen., 380. In both of the eases cited the falsity of the representations could have been ascertained by an examination of the records.
   Waite, C. J.

The plaintiff having executed a deed of his lands to John B. Atwood, became liable to him for the damages arising from a breach of the covenants contained in that deed. And if the defendant were allowed to set off those damages against the plaintiff’s demand in the present suit, it would be no bar to any suit that might be brought against the plaintiff by John B. Atwood, as he is no party to the present suit. Such a set-off might have the effect of subjecting the plaintiff twice to the payment of those damages; to the defendant, and to his son.

Upon no principle therefore, can the defendant avail himself of the benefit of those damages, so long as the plaintiff continues liable to pay them to another person.

With respect to the deed of the comptroller of the state of New York, its admissibility must depend upon the laws of that state, in which the lands are situated. If, by those laws, it would be admissible there, it is admissible in this state and has the same effect here that it would have there, in a controversy respecting the title of the lands purporting to be conveyed thereby.

It is for each state to prescribe the mode and manner of transferring real estate situated within its limits, and all deeds of conveyance must be made to conform to the laws thus prescribed.

In this state a deed of lands to be effectual must be attested by two witnesses, and no deed, not thus attested, will prove a transfer of real estate here, wherever it may be made or in whatever court it may be¡offered iffevidence.

If the deed iff question was sufficient in the state of New York, to prove title in the grantee, and afford presumptive evidence of the legality of all the preceding acts in relation to the sale, it must have the same effect here and in every other state, in a controversy respecting the lands which the deed purports to convey.

It however merely throws the burden of proof upon the defendant, to show the illegality of these previous proceedings in order to invalidate the deed. As that was not done, the deed was properly admitted in evidence.

The charge to the jury in relation to the care and diligence required on the part of the plaintiff, is one, of which the defendant has no cause for complaint. It was much more favorable to him than the law requires.

It is an extraordinary defence for a man, when sued for making a false and fraudulent representation, respecting the title of another, by which the purchaser became deceived and defrauded, to say to him you can not recover, because by searching the records you might have discovered the falsity of my representations; in other words, because you believed what I stated to be true, and acted accordingly without further evidence.

The very object in making those representations, was to throw the purchaser off' his guard, and induce him to act upon them without further enquiry. And the very foundation of the plaintiff’s claim is, that he believed those representations to be true, and was thereby induced to act as if they were so, and thus became defrauded.

We do not advise a new trial.

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

New trial not advised.


text:
    Parker et al. vs. Hotchkiss.
    Where the declaration in an action of trespass or trespass on the case for an injury to laftd, alleges that the plaintiff was well seized and possessed of the land, as a good indefeasible estate in fee simple, it is sufficient on the trial for the plaintiff to show a lawful possession at the time when the injury complained of was committed.
    And a judgment for the plaintiff in such a case, upon the plea of the general issue, is conclusive evidence between the parties and their privies, only of such title as the plaintiff was bound to prove.
    Therefore where, in an action on the ease involving the question of the plaintiff’s right to the uninterrupted flow of a stream to his mill, as against a riparian proprietor above, who was charged with obstructing the same, the plaintiff offered in evidence a judgment in favor of a party from whom he derived title, against a party from whom the defendant derived title, in an action brought to recover damages for a like obstruction, together with parol testimony that the suit was brought for the purpose of establishing the same right now claimed by the plaintiff; and it appeared that the declaration in the former suit, alleged that the plaintiff in that suit owned and possessed said mill with its appurtenances, and that he and those under whom he claimed, had for more than thirty-eight years enjoyed the uninterrupted use of the water of the river, flowing in its natural course and quantity, through and from the close in the possession of the defendant to said mill, and that the defendant did wrongfully erect and continue a certain dam across said stream within his said close, and thereby obstruct the passage of the water to said mill; and it also appeared that the only plea in said case was that of the general issue; said judgment being offered in evidence by the plaintiff as conclusive proof of the existence at the time, in the plaintiff therein, of the prescriptive title alleged in said declaration; it was held, that it was not necessary to the recovery in said suit that the plaintiff should have proved any other than a possessory title, and that consequently such judgment was not conclusive evidence of the title alleged in the declaration on which it was founded.
    Where a riparian proprietor has used a water privilege for more than fifteen —years, but in such a manner as to do other riparian proprietors no injury and give them no right to interfere, the proprietor so using the same acquires thereby no rights against such other proprietors.
    A proprietor of land through which a stream flows, has a right to detain the /water for his reasonable use, for mechanical and other purposes; and the question of reasonable use is one for the jury.
    And where, in submitting the question of reasonable use in such a case to the jury, the court had instructed them, that they were not to look alone at what would be a reasonable use at one mill, if there were no others on the stream, but that they were to take into consideration the wants of the other mills, and from all the circumstances say whether the use in the particular instance was reasonable; it was held, that the question was properly submitted.

      This was an action on the case, for obstructing the waters of West river in New Haven, by means of which they were prevented from flowing to the plaintiff’s paper mill, as they had been accustomed to flow.
    Upon the trial of this case before the superior court at New Haven, at the March term 1856, it appeared that the plaintiffs and defendant were owners and occupiers respectively of mill seats on West river. The plaintiffs claimed that their privilege was an ancient one, entitling them to the uninterrupted flow of the stream.
    In support of their claim they offered in evidence the records of two suits in favor of William Buddington and Samuel S. and William Wood, and William and Edward E. Buddington, from whom the plaintiffs derived their title, against William Bradley, from whom the defendant derived his title, and the testimony of William Buddington that those suits were brought for the purpose of establishing the right pertaining to the factory privileges, as claimed by the plaintiffs, to the free and uninterrupted flow of the stream for the use of the plaintiff’s mill.
    In the former suit the declaration alledged that from the first day of August to the 4th day of September 1832, they owned and possessed a certain mill seat and water mill, with the appurtenances situated near West river, and that they, and those whose estate they had in the premises, had, for more than thirty-eight years, the free and uninterrupted use of the water of the river flowing in its natural course and quantity, through and from the close in the possession of the defendant, higher up the stream, to an ancient dam and race-way, appurtenant to said mill seat and water mill, and thence through said race-way to said mill for-the purpose of working the same, and that the defendant did erect and wrongfully continue a certain dam across said river, on the close of the defendant, so as to obstruct the passage of the water to the plaintiff’s mill.
    The cause came on for trial, upon the general issue, before the superior court at New Haven, at the October term 1833, when the plaintiffs obtained a verdict for one dollar damages. The defendant filed a motion for a new trial, which was denied by the supreme court of errors, and the case is reported in 10 Conn. R., 213. (Buddington v. Bradley.)

    The other case was similar, for an injury committed by the defendant between April 1st and May 3d, 1833. It was defaulted and the damages assessed at six cents.
    The plaintiffs claimed and prayed the court to instruct the jury, that they and those under whom they claimed, in addition to the common right of riparian proprietors, had acquired a prescriptive right, by an use of more than fifteen years to the free and uninterrupted flow of the water of the stream, through and from the premises now owned by the defendant, to the premises of the plaintiffs, to be used at their pleasure, without obstruction; and that the aforesaid records, furnished conclusive evidence of the prescriptive right claimed by the plaintiffs, as existing at the time of the injuries complained of in those suits.
    But the court informed the jury, that, in its opinion, the question of a prescriptive right, such as was claimed by the plaintiffs, was not necessarily involved or established in those eases. But that it was proper for them to take them into consideration, in connection with the other evidence, showing the use of the stream and tending to establish a prescriptive right, and that, if from the whole evidence they were satisfied that the plaintiffs had used the water of the river at their mill, for more than fifteen years, during the dry season, without interruption, then they must find a prescriptive right commensurate with such use, and if the defendant had invaded that right, their verdict must be for the plaintiffs. And the court further instructed the jury that the plaintiffs, as riparian proprietors, had a right to have the water flow to their land in its accustomed manner, subject only to such obstruction as might be legally exercised by other riparian proprietors, whose lands were situated above those of the plaintiffs: that they were not in this character, entitled to the exclusive control of the water of the whole stream, so as to pre“ vent its use in any manner, and for any purpose, by other owners above them. That every riparian proprietor has an equal right to erect on his own land, hydraulic works, and to use the water in a reasonable manner for culinary, agricultural and mechanical purposes, if he return the water to the stream again, to flow in its accustomed course to the proprietors below. In doing this there may, and indeed must be, some change in the accustomed flow of the water, for if there be an obstruction placed in a river, and a small quantity of water be diverted to the kitchen or meadow of the adjoining proprietor, it is evident the stream will not flow precisely as it would have done without the obstruction. But no riparian proprietor has a right to use the water of a stream to the prejudice of other proprietors below him, unless he has acquired a prior right entitling him to such exclusive enjoyment. He may use the water for the purposes mentioned, while it runs over his land, but he must not unreasonably detain it, nor permit it to pass from his land in such unusual quantities as materially exceed the regular and natural flow of the stream.
    That the question of reasonable use was one for the jury, and in disposing of it they were not to look alone at what would be a reasonable use at one mill if there were no others on the stream, but to take into consideration the wants of the other mills, and from all the circumstances say whether the use in the particular instance was reasonable.
    That the question in this part of the case was this : — Has the defendant during the time stated in the declaration, used the water of the stream at his mill in a reasonable manner, and for a proper purpose, or has he detained it longer than was necessary for a reasonable use, or has he let it off in such quantities as materially to affect its accustomed flow to the plaintiff’s mill.
    The jury having returned a verdict in favor of the defendant, the plaintiffs moved for a new trial, and the questions arising on the motion, were reserved for the advice of this court.

      Baldwin and Beach, in support of the motion.
    The parties in the present suit, each deriving their title respectively from the parties in the former suits, are as to the matters which were in issue therein, concluded by the judgments then rendered. Canaan v. Greenwood Turnpike, 1 Conn., 1. Betts v. Starr, 5 Conn., 550. Denison v. Hyde, 6 Conn., 508. Pomeroy v. Barnes, 17 Conn., 420. Bell v Raymond, 18 Conn., 91.
    We suppose however that the controversy between us will be, not as to the rule, but as to its application, i. e., whether the prescriptive right to the water was a matter in issue in those former suits.
    I. The records were introduced in evidence in connection with proof by the testimony of Buddington, (and there was no contradictory evidence,) “ that said suits were brought for the establishment of the right pertaining to the factory premises, as was claimed by the plaintiffs, to the free and unobstructed flow of said stream thereto for the use of their mill, the actual damage occasioned by the interruption at the time of the bringing of said suits being inconsiderable.”
    II. The damages assessed by the jury being nominal, indicate that they regarded their verdict as settling a right, and not as a compensation to the plaintiffs for actual damages caused by an unreasonable use of the water.
    III. But irrespective of the accompanying evidence, and of the amount recovered, the record itself clearly shows what matters were in issue, and what were decided in those suits. That record consists of the writ, showing what rights the plaintiffs claimed ; of the motion, showing what rights they claimed to have proved, and also showing what the Judge instructed the jury they must find proved, to entitle the plaintiffs to a verdict; and of the verdict itself, and the judgment of the court thereon.
    1. The writ sets out that the plaintiffs own and possess a mill seat on West river, and that “ they and those whose estate they have in the premises, have had for more than thirty-eight years the free and uninterrupted use of the water of said river, flowing in its natural course and quantity” from the defendant’s premises “ to an ancient dam and raceway appurtenant to said mill-seat and water mill; ” alleging “ that they were entitled, and still of right ought to have and enjoy the same in manner aforesaid, free and unobstructed.”
    2. In the motion allowed, the court found that “ the plaintiffs claimed to have proved that they,' and those under whom they claimed, had, for more than a century, enjoyed the free and uninterrupted use of the water of West river in its natural course and quantity, through the lands now occupied by the defendant, to the lands of the plaintiffs, and thence by means of an ancient dam across said river through a race-way, to an ancient mill, to move the machinery thereof; and they and those under whom they claimed had used and enjoyed the water of said river as their convenience required, and during the dry seasons of the year had been accustomed to turn the whole of the water of said stream through the race-way for the use of said water mill, without interruption or molestation.”
    3. The court charged the jury “that if they found that the plaintiffs and those under whom they claimed, had for more than fifteen years prior te the obstruction raised by the defendant and those under whom he claimed, had the free and uninterrupted flow of the water of said stream, to use at their own free will and pleasure, without hindrance or disturbance,” they must find their verdict for the plaintiffs.
    4. The verdict and judgment were for the plaintiffs to recover one dollar damages.
    IV. It is apparent, therefore, from the record that the question whether the plaintiffs in those suits had a prescriptive right to the uninterrupted use of the water, was not only in issue, but it was, aside from the question of injury by the acts of the defendant, the only point in issue. Strutt v. Bovingdon, 5 Esp., 56.
    V. The reasons which influenced the supreme court to refuse a new trial in the case, are no part of the record.
    We claim further that there was error in the charge to the jury thatif no prescriptive right was proved, the defendant was entitled, as riparian proprietor, to detain the water, for his reasonable use for mechanical purposes, by means of hydraulic works erected on his own land; and that the question of reasonable use was to be determined by the jury, not by what would be reasonable if there were no other mill on the stream, but by considering the wants of other mills and all the circumstances. The plaintiffs insist that their rights as riparian proprietors to the flow of the stream in its natural course and quantity being a right annexed by law to the ownership of their land, does not depend for its extent on their wants or their use, and that neither the rights of the plaintiffs nor the defendant can be restricted or enlarged thereby. Angelí on Water Courses, Sees. 94, 95, 96. 12 M. & W., 324.
    i?. I, and C. R. Ingersoll, contra.
    1. The question whether the plaintiffs had a prescriptive right to the use of the water, in addition to their rights as riparian proprietors, was submitted to the jury as a question of fact, and found against them. But. they claim that the superior court erred in not instructing the jury, that the case of Budington v. Bradley, was conclusive in establishing in the plaintiffs the prescriptive right contended for.
    It is quite manifest, however, that this case does not establish any such prescriptive right.
    The supreme court put the case on the original rights of the riparian proprietor, to have the accustomed and natural flow, and not on any acquired right to have the water in a particular manner. See remarks of Williams J., 10 Conn., 218.
    2. The jury having, in the case on trial, found the question of prescriptive right against the plaintiffs, they can stand only upon their rights as riparian proprietors. As such, they have the right to have the flow of the water in its natural and accustomed manner. But that right is not inconsistent with the right of the other riparian proprietors to the reasonable use of the water as it flows through their own land. These other riparian proprietors, can not, however, divert it or unreasonably detain it. The right to use necessarily implies the right to dam, and to detain the water long enough to use it reasonably and advantageously, carefully returning it, after such use, to the bed of the stream, before leaving their premises, to let it flow on in its natural course and quantity, to the other riparian proprietors, for the like use by them.
    The law on this subject is well brought together in the case of Embury v. Owens, 4 Eng. Law and Eq., 476. The court say—

      “ The law as to flowing water is now put on its right footing by a series of cases and is fully settled in the American courts. See 3d Kent Com., 439-445. This right to the benefit and advantage of the water flowing past his land is not an absolute, an exclusive right to the flow of all the water in its natural state ; if it were, the argument that every obstruction of it would give cause of action would be irrefragable; but it is a right only to the flow of the water and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side, to the reasonable enjoyment of the same gift of Providence. It is only therefore, for an unreasonable and unauthorized use of this common benefit that an action will lie, &c.” Platt v. Johnson, 15 John., 212. Wadsworth v. Tillotson, 15 Conn., 376.
    See as to the right to use running water generally. Dickinson v. Grand Junction Canal Company, 9 Eng. Law & Eq., 513. Hartzall v. Sill, 12 Penn. State Rep., 248. Van Hoesen v. Coventry and Mandeville, 10 Barbour, 518. Cary v. Daniels, 8 Met., 466. Pitts and others v. Lancaster Mills, 13 Met., 156. Hetrich v. Deachler, 6 Barr., 32. See also the very recent case, Thurber v. Martin, 2 Gray, 394, where Chief Justice Shaw sums up the whole doctrine thus:—
    “ Every man has a right to the reasonable use and enjoyment of a current of running water, as it flows through or along his land, for mill purposes, having a due regard to the . like reasonable use of the stream by all other proprietors above and below him.”

      3. Whatever may have been the rights of the plaintiffs, in regard to flowing water, original or derivative, the jury having found that the defendants, being riparian proprietors, have only used the water reasonably, there can be no recovery, Twiss v. Baldwin, 9 Conn., 291, 308.
   Waite, C. J.

In the two suits, the records of which were read in evidence, the plaintiffs were under no obligation to prove their title to the extent alledged, in order to entitle them to the verdict which they recovered. It was suffleient for them to prove so much of it, as would enable them to sustain their action, had no more been alleged.

Thus a person, who has the lawful possession of lands, may maintain an action for trespass committed upon them, and in his declaration need not set out more than his possessory title. But if he goes further, and alledges that he was well seized and possessed of those lands, as a good indefeasible estate in fee simple, and on the trial fails to establish such a title, still he may recover upon proof of a lawful possession during the period in which the injury complained of was committed. And if the case were tried upon the general issue, the record of it, in a subsequent case between the same parties, would prove nothing more than the plaintiff was bound to prove to entitle him to the verdict which he obtained.

So in the case of Buddington v. Bradley, it was sufficient for the plaintiffs, on the trial of their case, to prove a lawful possession of their mill and water privileges, during the time when the injury complained of was committed, but it was not necessary for them to prove that they and those under whom they claimed, had had such possession for a period of thirty-eight years previous thereto, and therefore the record does not establish the plaintiffs’ title during such anterior period, nor indeed any fact which it was not necessary for the plaintiffs to have proved, in order to entitle them to their verdict.

The court below was therefore right in saying to the jury that those records did not prove a title in the plaintiffs to the extent they claimed.

It was further insisted by the plaintiffs that they had gained a title as against the defendant, by the use of their mill and their water privilege for a period of more than fifteen years. It is difficult to see upon what ground this claim can be maintained, so long as the plaintiffs, in the use of their mill and water privilege, did not invade any rights of the defendant.

If indeed the plaintiffs, by means of their dam, had thrown the water back upon the defendant’s land, and had continued to do so for a period of more than fifteen years, without obirction on his part, the law would presume a grant to the plaintiffs of the right to flow the defendant’s land, because it is not to be supposed that he would have suffered such a continued injury to his land without objection, unless the plaintiffs had acquired the right.

But if the plaintiffs have done nothing more than merely to use their own property, and in such a manner as to do the defendant no injury, and give him no right to interfere with their use of their property, it is difficult to see how, by such an use, they can acquire a title as against the defendant.

What would be the effect of a title acquired by prescription, strictly so called, that is by an user extending so far back, as, in the language of the books, the memory of man runneth not to the contrary,” we need not enquire, because no such title was claimed in the court below.

Indeed the charge of the court upon the claim of the plaintiffs, as it was made, was in their favor, and therefore they have in this part of the case no cause for complaint, and the question need not further be considered.

It is finally claimed that the charge given to the jury was wrong, inasmuch as they were told that the defendant as riparian proprietor, had a right to detain the water for his reasonable use, for mechanical purposes, by means of hydraulic works, erected upon his own land, and that the question of reasonable use was one for the jury.

It is said this gives no definite rule, by which the rights of the parties may be determined, but the question is left to the varying opinions of jurors. The same objection might be urged in other cases where questions respecting reasonable care, reasonable diligence, and reasonable notice, arise, and are left to the jury.

But in our opinion the case was properly submitted. The plaintiffs, as lower riparian proprietors, were not entitled to the exclusive control of the whole stream. They have no right to say to the proprietors above, you shall not have the use of the waters of the stream, while passing over your lands, if you in an} manner obstruct the natural flow of the stream. The latter have rights as well as the former, and are equally entitled to the privilege of erecting mills and hydraulic works upon their own lands, and using the waters of the stream for operating them to a reasonable extent.

We do not advise a new trial.

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

New trial not to be granted.


author: Hinman, J.

text:
    Hart vs. Connor and others.
    Where the grantor of a tract of land, reserved in his deed the right within a limited time to open a highway of a certain width, from the north line of said land to certain land on the south side, with no other restriction as to the location than that it was not to be laid further west than certain designated points, the same being described in another part of said reservation as “ a highway across said land,” and within the time limited, the grantor located said highway over the east end of said tract, and by the side of another highway on which the tract conveyed was bounded, but within the limits prescribed in the reservation, which location was claimed by the grantee to be different from that intended by the parties upon a fair construction of the terms of said reservation; it was held, that the express limitation of certain points on the west beyond which the highway was not to be located, and the absence of any such limitation on the east, indicated that the parties did not intend any restriction as to the eastern portion of the tract, and that, there being nothing in the terms of the reservation to prohibit the location made, the grantor had the right to make it.
    Where, in an action of trespass involving the right of such grantor to locate said highway in the manner above described, the plaintiff requested the court to charge the jury, that said grantor was bound to exercise his right of locating a highway under said reservation, in a reasonable manner, according to the views of the jury, in view of all the circumstances and the situation of the premises, and as shown not only by the terms of said reservation but by extrinsic evidence; and the court instructed the jury that said grantor had full right, under said reservation, to exercise his own judgment fairly, and to open a highway over said premises, within the given monuments, wherever he judged best, provided he did not act wantonly and oppressively in so doing; it was held, that the charge conceded to the plaintiff all that he had any right to claim.
    Where, previously to the location in question, said grantee had elected to locate the highway authorized by said reservation, in a different place, which location was not in accordance with the terms of said reservation, and which highway so located the grantor was prohibited from opening, by an injunction issued upon the application of the grantee; it was held, that the right to elect as to the location of said highway, was not thereby exhausted.
    This was an action of trespass, for entering upon, digging up, and removing the soil of the plaintiff’s land.
    The defendants pleaded the general issue, with notice that they would claim and offer evidence to prove, that all the acts complained of were done, if done at all, within the limits of a certain street called Noble street, and that if any of said acts were done without the limits of said street, they were authorized to be done by William H. Noble, Esq., by virtue of a reservation in a warranty deed of the premises described in the plaintiffs’ declaration, given by said Noble to the plaintiff, dated December 9th, 1850.
    The reservation referred to was in the following words : “ reserving the right, on payment at the rate of $500 per acre, and interest thereon from this date, to open a highway 3 rods wide, from said north line, not further west than the 7th post from said railroad abutment, on said railroad line, to and into the land of Isaac Burrough’s wife, aforesaid, the western side of said road, on the south, not to go further west than the centre, between two hole posts, now standing on the line of said Burroughs land aforesaid: said Noble to elect within one year as to the opening of said highway reserved across said land: reserving to myself all the earth and trees growing on said highways, and on said north highway the gravel down as low as grade of New York and New Haven railroad, or lower if thought best for highways.”
    The cause was tried at the term of the superior court for the county of Fairfield, holden in October 1855.
    Upon the trial the plaintiff claimed and requested the court to instruct the jury that said Noble had no right by virtue of the reservation aforesaid to open a highway over the portion of said premises in controversy, as was claimed by the defendants to have been done by him on the 8th day of December 1851, for that before that time, to wit, on the 1st day of October 1851, he had elected to open, and had in fact commenced opening and laying out a highway across said premises, over a different part thereof, claiming to make said election, opening and laying out under said reservation, and thereof had given the plaintiff notice. It appeared that said Noble had made such prior election, and had commenced opening and laying out said highway under the same, previous to said election of the 8th day of December 1851, and that the plaintiff by his petition brought to the county court, had denied the validity of said prior election, and prayed out a temporary injunction against said Noble, restraining him from proceeding further with the opening and laying out of said highway, until the determination of said suit. The respondent therein had moved at chambers, for the dissolution of the injunction, but on full hearing on the merits, this motion had been denied, and the cause then stood continued, with said injunction in force, neither party having moved further therein.
    The plaintiff claimed that said first election was conclusive on said Noble, so that he could not make a second election as he had attempted to do, and asked the court so to instruct the jury. The court did not so instruct them.

      The plaintiff further claimed, and asked the court to charge the jury, that said Noble, under said reservation, had no right to open, or elect to open, a highway over said premises, in the manner claimed by the defendants to have been last done by him, viz,: over a strip of land embraced in said premises, three rods wide, and extending from the northerly to the southerly boundary line, upon the extreme easterly portion therof, contiguous to the line of a highway, in said deed referred to and described as the easterly boundary of said premises, and which at the time of said election, was a public highway and known by the name of Noble street; which street the plaintiff claimed, was sufficiently wide and commodious for the accommodation of said Noble and the public generally.
    The plaintiff further claimed that said Noble, under said reservation, was bound to exercise the right of electing to open a highway over said premises, in a reasonable manner, according to the views of the jury in view of all the surrounding circumstances and the situation of said premises, as well at the time of the execution of said deed, as at the time of said election, and as shown by the terms of said deed and reservation and by extrinsic evidence; and that, if such reasonable election had not been made by said Noble, the same was invalid, and would furnish no justification of said acts of the defendants. But the court did not comply with these claims, but instructed the jury that said Noble had full right, under said reservation, to exercise his own judgment fairly, and to open or elect to open a highway over said premises, within the given monuments, wherever he judged best, provided he did not act wantonly and oppressively in so doing.
    The jury having returned a verdict for the defendants, the plaintiff moved for a new trial for a misdirection.

      Loomis and Warner, in support of the motion.

      Hawley and Dutton, contra.
   Hinman, J.

This was an action of trespass for entering upon and digging up the soil of the plaintiff’s land. The acts complained of were done under the authority of William H. Noble Esq., who had been the owner of the locus in quo, which, together with other adjoining land, on the 9th of December 1850, he conveyed to the plaintiff by deed of warranty, containing the following reservation. i( Reserving the right, on payment at the rate of $500 per acre, and interest thereon from this date, to open a highway three rods wide, from said north line, not further west than the 7th post from said railroad abutment, on said railroad line, to and into the land of Isaac Burrough’s wife aforesaid; the western side of said road, on the south, not to go further west than the centre between two hole posts, now standing on the line of said Burrough’s land aforesaid : said Noble to elect within one year, as to the opening of said highway across said land : reserving to myself all the earth and trees growing on said highways ; and on said north highway, the gravel down as low as grade of New York and New Haven railroad, or lower, if thought best for highways.” Within the year from the date of his deed, Mr. Noble elected to open the highway over the disputed premises, and it is not denied that, as designated by him, it comes within the terms of the reservation. It crossed the land conveyed to the plaintiff, not further west than the 7th post from the railroad abutment, and ran to, and into the land of Isaac Burrough’s wife; and no question is made, but that all that was necessary to be done under the reservation, was done, before it was attempted to open the road. But it was located across one end or side of the land, and along by the side of another highway, on which the whole tract conveyed was bounded; and the claim is made, that this location is contrary to thé intention of the parties, as expressed in the reservation.

But we think the power to select a location for thé road can not be controlled by the boundaries of the land; and, so long as there is nothing in the deed which prohibits the selection being made, so as to lay the new road across one end of the land and along by another road, that selection must stand. East of the post mentioned in the reservation, there is nothing to limit the right of Noble, except that, at one end, it'must run into or to the land of Mrs. Burrough’s. And the express limitation of certain points on the west, beyond which the road was not to go, with none on the east, shows that it was not intended to limit the right on that side.

The plaintiff claimed that the right of opening a highway under the reservation must be exercised in a “ reasonable manner, according to the views of the jury, in view of all the surrounding circumstances and the situation of the premises.” We suppose this means that the jury were to judge of the reasonableness, of the exercise of the right, in respect to the place where said road should be opened, and in this aspect, if any answer to the claim is needed, we think it has been answered already. And the court certainly gave the plaintiff all he ought to claim, when the jury were told, that Noble had full right under said reservation to exercise his own judgment fairly, and to open or elect to open a highway, within the given monuments, over said premises, wherever he judged best, provided he did not act wantonly, &c.; and as the verdict was in favor of the defendants, they have no occasion to complain of the charge.

But previous to the opening of the road for which this action is brought, Mr. Noble had elected to open a road under the reservation, in another place, and had commenced laying it out in such place ; and the plaintiff claims that his former election is conclusive upon him, to prevent any other laying out or opening of a road under the reservation. Had the first election been a legal exercise of the power reserved, we do not see why the effect claimed for it would' not follow. But as it was not a legal exercise of the powe'r, and was not acquiesced in by the plaintiff, we think it has no effect to prevent another election, which is within the power. The road first located did not cross the land from the railroad, so as to “run to and into the land of Isaac Burrough’s wife.” It did not touch that land, and of course was not the road contemplated and reserved in the deed. Still had the plaintiff acquiesced in such unauthorized location and opening, and had not interfered to prevent it, as not within the reservation, perhaps Noble might be estopped from making another selection. However that may be, the plaintiff did not acquiese, but, on the contrary, he caused an injunction to be issued against the opening of the road as first selected. We do not see therefore how that selection can now be used to prevent a legal execution of the power. We- place no other reliance upon the fact that Noble was prevented by injunction from opening the road at the place first selected by him, except that it shows that the plaintiff did not acquiesce in that location; the injunction having issued at his instance. This circumstance, in connexion with the fact that the location was one which the parties did not contemplate as proper to be made, and which the reservation did not justify, leaves the power wholly unexecuted, except by the location last made, and under which the acts complained of were performed for the purpose of opening the road thus located. For these reasons the court do not advise a new trial.

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

New trial not to be granted.


text:
    Weed vs. Weed and another.
    The superior court has power to correct a record of a judgment, where such record does not conform with the judgment rendered.
    During the term at which the judgment is rendered, the correction may be made by order of the court, on a mere suggestion of the error.
    After the term is ended, the correction ought to be made only on a formal petition, setting forth the mistake, and the alteration prayed for, and after proper notice to the adverse party to appear and show reasons why the correction should not be made.
    Jurisdiction in law and chancery being vested in this state in the same tribunal» there is no objection to the court administering, in the same case, the different relief that is appropriate to each jurisdiction.
    Therefore, where a petition was brought to the superior court, praying for the correction of the record of a judgment rendered at a former term of the same court, and also praying that the defendant might be enjoined against setting up the erroneous record in defense of a suit pending between the same parties ; it was held, that it was no objection to the petition that it prayed for the action of the court, as a court of law in making the correction, and as a court of chancery in granting the injunction.
    The case of Carrington v. Solabird, 17 Conn. R., 530, and 19 Conn. R., 84, referred to and approved.
    Where, on an application for the correction of the record of a judgment of the superior court, which had been rendered upon advice of the supreme court of errors, the respondent, for the purpose of showing that such record was not in fact erroneous, read in evidence a letter from the presiding judge of the supreme court, to the clerk of that court, written at the time, but out of court, informing him of the decision of the supreme court in the case: it was held, that such letter, though admissible in evidence, was a mere informal communication and of no authority as a record.
    Whether there is an error in a record, is a question of fact, and on an application for its correction, the fact is to be established like any other fact in a court of justice, by pertinent evidence. And parol evidence is admissible on such enquiry.
    The entries made by the clerk of a court in his docket book, are not records, but mere memoranda, to assist his memory in afterwards making up the record.
    Where, on a petition for the correction of a mistake in the record of a judgment, an order was made, in connection with the order making the correction, that the petitioner should endorse on the execution a certain sum improperly included in said judgment; it was held, that this constituted no objection to the principal order; as it was proper that the relief sought, should be granted-on such terms as justice required; and that as the petitioner did not complain of the order, the defendant, in whose favor it was made, could not object to it.
    This was a petition to the superior court for the county of Fairfield, praying for the correction of the record of a judgment, in an action at law, between the same parties, rendered at a preceding term; and also for an injunction against the use of such record to defeat an action of ejectment then pending.
    It was alledged in the petition, that the plaintiff brought his action at law against the defendants, and attached certain real estate ; that before the superior court, for the county of Fairfield, at the October term 1851, he recovered a verdict for the sum of $745.85 damages and $76.54 costs of suit: that the defendants thereupon moved for a new trial, and the case was reserved for the advice of the supreme court of errors, and that that court at the June term 1852, advised the superior court to grant a new trial, unless the plaintiff would remit the sum of $117, part of the verdict: that in the superior court, at the following October term, he applied for leave to remit that sum, and take judgment only for the balance which the court permitted ; but that the clerk, in making up the record, mistook the judgment of the court, and made the following erroneous record.
    “ And this court, pursuant to advice of the supreme court of errors, doth consider that said rule to show cause be made absolute, and that a new trial be granted, and that said case be entered in the docket of this court for a new trial, and the defendants recover of the plaintiffs their costs. In this case the plaintiff remits the sum of $117, and takes judgment for the balance, on the judgment, as by said verdict rendered, and the interest after deducting said sum of $117.”
    “ Test Wm. H. Noble, Clerk.”
    That the petitioner took out execution and levied the same on the land attached, and brought his action of ejectment to recover the same, which was still pending, and that the defendants were endeavoring to reverse said judgment, and prevent the plaintiff from recovering the land and holding title to the same.
    The petition then prayed that the record might be corrected, the judgment confirmed, and the defendants enjoined from taking advantage of the mistake to prevent the petitioner from recovering in his action of ejectment.
    The cause came on for trial before the superior court, at the October term 1855, when that court found the allegations in the petition to be true, and passed a decree correcting the record, making it in conformity with the advice of the supreme court of errors, and enjoining the defendants against claiming on the trial of the action of ejectment or elsewhere, that the judgment was not as corrected.
    The decree contained a further order, made with the consent of the petitioner, tha.t within sixty days after the rising of the court, he endorse on the execution issued upon the original judgment, the sum of $57.75, claimed to have been improperly included in the judgment.
    Upon the trial of the case the petitioner offered in evidence the following entries, made upon the docket book of the superior court.
    “ October term, 1851.

      “ Jury — verdict 9th day. Motion for new trial.”
    “ October term, 1852.

      “ Rule discharged 3rd day. The plaintiff remits the sum of $117, and takes judgment for the residue.”
    “ October term, 1853.”
    [The record set forth in the petition.]
    Also the following entry upon the docket book of the supreme court of errors, at the June term 1853 : “ New trial granted and the entry upon the record book of that court made as follows: “ The superior court is advised that a new trial be granted.”
    He also offered the testimony of J. M. Carter Esq., and óf H. F. Porter, the assistant clerk of the superior court, to prove that, at the term of that court in October 1853, the late Judge Church, then holding the court, stated verbally in court, that the court of errors had granted a new trial in the case, unless the plaintiff would remit the sum of $117, part of the sum reserved by him, but granted a new trial, provided the plaintiff would not remit that sum.
    To the admission of this evidence the defendants objected, but the court overruled the objection.
    They then read in evidence the following letter from the late Chief Justice.

      “ Middletown, July 16, 1855.

      “ Clerk of the supreme court of errors. Fairfield county.”
    “ In the case of Daniel G. Weed v. Stephen Weed and others, tried at Fairfield, June term, 1853, the court has granted a new trial.
    Samuel Church, Chief Justice.”
    The defendants insisted that upon the foregoing evidence the amendment prayed for in the petition could not legally be made, but the court decided otherwise, and decreed in favor of the petitioner.
    The defendants therefore filed a motion for a new trial, and also a motion in error, and the questions of law were reserved for the advice of this court.

      Hawley and Ferris, in support of the motions.
    1. The testimony of Messrs Carter and Porter, was inadmissible. It was from mere recollection, aided by no written memorandum. It was several terms after the judgment was entered up. It was contradictory to the judge’s official communication of the decision to the clerk, to the record of the court of errors, and to the record of the superior court of that very term.
    A written memorandum or that which is equivalent is always necessary. Waldo v. Spencer, 4 Conn. R., 71. Bradley v. Baldwin, 5 Conn. R., 284. Queen v. Virrier, 12 Adol. & El., 317. (40 E. C. L., 48,) “ by another part of the record.” Atkins v. Lawyer, 1 Pick., 351.
    Here it contradicts the record. Thatcher v. Miller, 13 Mass. R., 270.
    2. But on all the testimony the amendment could not be made, after and long after (seven terms) the term when the judgment was rendered. 3 Bla. Com., 407. 1 Tidds. Pr., 648. Judson v. Blanchard, 3 Conn. R.,580. Wilkie v. Hall, 15 Conn. R., 32. If the. amendment was allowable here, an amendment may be allowed at any time after judgment.
    3. But the whole evidence is opposed to the amendment at any time. The letter of Judge Church, the record of the court of errors, and even that of superior court, all stand opposed to it.

      Dutton and Carter, against the motions.
    1. The mistake of the clerk in making up the judgment complained of, may be corrected at any time. 3 Bl. Com., 24. Atkins v. Sawyer, 1 Pick., 351, 354. “ A judgment may, as to matters of form,- be amended at any time.” Hickman v. Barnes, 1 Missouri R., 156.
    2. The injunction is clearly within the power of the court. Carrington v. Holabird, 19 Conn. R., 84, and S. C., 17 Conn. R., 530.
    3. Parol evidence was here admitted, not to contradict a perfect record, but to correct a mistake arising from the misprision of the clerk.
    4. The entries on the docket and on the record book of the court of errors, are not records. There is no law requiring such memoranda to be kept.
    5. The court of errors had no power to render any judgment, or make any record, on a motion for a new trial. The case was reserved for their advice, and they gave advice, but that did not control the superior court, where the actual power is lodged in rendering the judgment: 1 Sw. Dig.,781.
    The power to grant or refuse a new trial, was in the superior court. Stat., Ed. 1854, p. 101, sec. 155.
   Waite, C. J.

Several objections have been made against the decisions in the court below.

In the first place it is said, that the court had no power to make the correction prayed for, and therefore ought to have dismissed the petition as insufficient.

The county and superior courts, in this state, both by statute and the common law, have long exercised the power of setting aside a judgment and granting a new trial, for reasonable cause, not only upon motion made, at the term when the judgment was rendered, but upon a petition brought to any subsequent term, within the three years limited by the statute.

And it would seem to be as reasonable for a court to correct a record, not made in conformity with the judgment, as to set aside that judgment, when justice to the parties required that it should be done. The power is necessary to prevent a perversion of justice.

If the error of the clerk in making up the record, is discovered at the term of the court in which the judgment is Tendered, the record may be made right by direction of the court, without any formal application for that purpose.

But if the mistake is not discovered until after the term is ended, and the parties have gone out of court, the correction ought not to be made, unless upon a formal petition setting forth the mistake, and the alteration prayed for, and after due notice has been given to the adverse party, to appear and show reasons why the relief should not be granted. All this was done in the present case, and hence no objection arises from want of due notice to the defendants, who appeared and were fully heard in the court below.

Again it is said, the petition is bad, as it prays for relief in a court of law, and also in a court of chancery; that the correction of the record of a judgment in a court of law, can only be made by that court, while a court of chancery alone has power to grant an injunction. There would be much force in this objection, were the two jurisdictions, as in England, and in some of the other states, vested in distinct tribunals.

But in this state the superior court administers relief, both in law and in equity. The form of the petition in this case, whether considered as an application for the correction of a record, or for an injunction, is substantially the same as it would be, if it contained a prayer for relief in one only of those particulars.. And when we consider that the design of the suit is in effect to accomplish but one object, the correction of the record, and the prevention of an improper use of it, we see no necessity for requiring two suits to be brought, when entire justice can be done in one.

But, however this may be, the principle has been virtually settled by this court, in the recent case of Carrington v. Holibard, 17 Conn. R., 530, and S. C., 19 Conn. R., 84. In that case, it was holden, that in a petition for a new trial in an action at law, the petitioner might pray for an injunction against enforcing the payment of the judgment that had been rendered. We see no reason for disturbing the doctrine recognized in that case.

In the next place, it is said that parol evidence was inadmissible to vary or contradict the record, and therefore the court erred in admitting the testimony of Carter and Porter. The principle is undoubtedly correct, when applied to the construction of the record, but does not apply when the object is to correct a mistake in the record.

Parol evidence is not admissible to vary the terms of a deed, but yet, in an application in chancery to correct a mistake in it, it is the constant practice to admit parol evidence to prove the mistake, to show what the agreement of the parties was, and what were the instructions given to the scrivener who drew it.

It is often the case, that the court announces in open court, the decision which it has made, without furnishing the clerk with any writing upon the subject. Were the latter to make a mistake in entering up the judgment, the injured party would be remediless, unless the mistake could be corrected upon the testimony of the judge who made the decision, and the counsel and others who were present and heard it announced.

Again it is said that the letter of the late Chief Justice, being in writing, ought to have had controlling influence in the decision of the case. But that was not a record which the law required to be kept, but a mere communication from the presiding member of the court, made out of court, to the clerk, informing him of the decision which had been made.

A mistake in that communication, in consequence of which the record was incorrectly made, would be just as injurious to the petitioner as if made by the clerk alone, and would render the record just as liable to correction.

Nor were the. entries made upon the docket books, records, in the proper sense of the term, but mere memoranda, to assist the memory of the clerk, in afterwards drawing up his record.

Whether there was a mistake in the record, was a question of fact for the court below, to be established, as any other fact in a court of justice, by proper evidence. For this purpose the letter of the late Chief Justice, the entries upon the docket books, and the testimony of the witnesses who heard the decision announced in open court, were all admissible ; and it was for the court upon that evidence, to say whether in fact a mistake had been made which required correction. And we see no ground for saying that the correct conclusion was not drawn from the evidence.

It is finally said that the decree is erroneous, inasmuch as it orders the petitioner to make a certain endorsement upon his execution. An application for the correction of a mistake in a record is very much like an application for a new trial, resting in some measure in the discretion of the court. And if the court sees that, by granting the prayer of the application, it would give the applicant an undue advantage over his opponent, it may withhold the exercise of its power, unless the applicant will consent to do justice to the opposite party.

The object of the petition, in the present case, was not to set aside a judgment, but merely to correct the record of it. And it seems that, on the trial, it was claimed that a certain sum was included in the judgment, which ought not to have been included. To obviate all difficulty arising from that claim, the petitioner consented to endorse that amount upon his execution. An order to that effect was accordingly made, and the correction decreed.

The petitioner can not and does not complain of this order. No injustice is done to the defendants, as it operates in their favor, and was probably made upon their complaint.

We therefore do not advise a new trial.

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

New trial not to be granted.