Ealahan v. Ealahan

Keeler, J. Evidence of the deeds and proceedings above referred to was clearly admissible. These instruments tended to prove the ownership by the defendant of a certain interest in real estate, and were certainly admissible for that purpose. For the defendant to claim that because of the existence of a certain deed not offered at the time, the evidence offered could not be received, is to beg the question. If plaintiff neglected to offer any deed claimed to affect the title she did so at her peril, but such neglect does not in any way qualify her right to offer evidence in itself admissible. One ground of objection claimed by defendant is that before offering the copies of the deeds and proceedings, plaintiff’s counsel stated that the interest of the defendant had been conveyed away prior to the initiation of the suit. This is incorrect, and just what plaintiff’s counsel carefully refrained from doing, as appears by the finding, which says that he “stated that defendant had before this action made to said sister a quitclaim deed of said real estate.” A second ground *180 is that counsel had informed the court that said interest had been conveyed to defendant’s sister prior to suit brought. This information, it appears by the finding, was conveyed to the court by defendant’s counsel, and, unsupported by evidence, was of no significance. In this connection, on behalf of the defendant, great stress is laid upon the operation of the recording system, and the law of constructive notice is claimed to have probative effect in an action wherein any recorded instrument might have evidential value. In other words, the existence of a recorded instrument is proof in court of its contents, without production of the record or a properly authenticated copy thereof. As counsel expresses the claim in the defendant’s brief: “Also there is a presumption that the plaintiff and court had knowledge of the record title from the recording laws.” Our land records, generally speaking, exist for two well-recognized purposes: in the first place, to preserve evidence of deeds and other instruments that the same may be used as proof of the matters which the latter contain; and secondly, to charge any party interested with a constructive notice equivalent to the actual knowledge-which would be acquired from perusal of any original instrument. But the law just referred to goes no further in an evidential way. Constructive notice can never take the place of proper profert and proof of any instrument claimed as evidence at a trial. The third and fourth objections to the evidence offered are founded on the lack of allegations proper to serve as a basis for setting aside this quitclaim deed, and because the sister was not a party defendant in this action. It is true that no such allegations appear and that the sister was not a party to the proceedings; it is equally true that such allegations would have been out of place in an action for divorce, and such a party an improper one. *181 The allegation of ownership and value of property is the ordinary one contained in the Form of the Practice Book (1908) Form 112, p. 339, and is adequate as a foundation for any evidence as to the pecuniary resources of the defendant produced by the plaintiff, and of contradictory evidence offered by defendant. That.is the function of the allegation, and it is not adapted to the trial of title to any items of property of which it may be claimed that any defendant may be the owner. In order to try title it would be necessary, where the alleged property of the defendant consisted of many items or parcels, to have as codefendants a numerous and practically unascertainable number of persons, and complicated subpleading, perhaps resulting in a multiplicity of collateral issues. It might be necessary to construe wills and to pass upon the validity and amount of claimed incumbrances, not to speak of other issues which might arise. Such questions can only properly arise in subsequent proceedings, when in the divorce action alimony has been awarded and the attempt is made to secure the same by proper action to appropriate defendant’s property in payment. "The allowance of alimony is an incident to an action for a divorce, and, although the determination as to its allowance may involve a controversy as to facts, such determination is not the trial of an issue in the case.” Hunter v. Hunter, 111 Cal. 261, 269, 43 Pac. 766. The purpose of the inquiry as to property of defendant is to enable the court to get as close an approximation as may be to his ability to pay alimony, and on this basis to make a just award. The defendant further claims that even assuming that a presumption of ownership was raised by Exhibits D to K, this presumption was rebutted by the testimony of the defendant that he owned no property, by the knowledge of the plaintiff that defendant had conveyed *182 his property interest to his sister, by the fact that the record of the quitclaim deed charged the plaintiff with knowledge of such a conveyance, and that the court was made acquainted with the existence of the record of the deed in the argument and upon the motion to reopen the case. Now all the knowledge that the plaintiff had, or could be charged with having, was that a quitclaim deed, of a certain date after defendant’s acquisition of the property, appeared on the land records. Also her counsel had admitted the existence of such a record. So far, however, from admitting this instrument as a conveyance, it would appear that the plaintiff claimed that it was wholly voluntary and inoperative. The court, then, had before it a series of instruments showing ownership of property by defendant at a certain date, and the acknowledged existence of a record of a quitclaim deed of later date made by defendant to his sister. In this connection the court had to consider that the defendant, on the stand, made merely a sweeping denial of ownership of any property, did not say that he had conveyed it away, made no reference to the deed which he had given, or offer of the deed in evidence; also, that the sister of defendant, releasee in said deed, testified at the trial, made no claim that she owned the property in question, or any mention of the fact that she had received a deed thereof. In this connection, also, it is to be noted that the defendant’s counsel was pressed by the court to produce the deed in evidence, which the latter declined to do; and, further, that the court did not believe the defendant, and expressly finds that he was not a credible witness. An evidential situation of this character certainly did not compel the court to find the rebuttal of the presumption arising from the instruments offered in evidence by the plaintiff. Manifestly defendant’s counsel did not wish to introduce the quitclaim deed and subject the relea *183 sor and the releasee, the defendant and his sister, present in court as witnesses, to examination thereon. When later, after the close of the trial, defendant’s counsel sought the reopening of the case, his motion was denied by a proper exercise of discretion, for the very cogent reasons stated by the trial judge in the finding.. Here was plainly no abuse of discretion. The principal grievance of defendant arising from the denial of this motion, as expressed in his brief, seems to be that thereby he was prevented from obtaining a position as regards the evidence of great technical value, since he claims that had the quitclaim deed been admitted in evidence it would have rebutted the presumption of continued ownership, and that the court would have erred had it admitted any evidence offered by plaintiff to show that the deed was given in fraud of plaintiff’s rights, in absence of sufficient allegations in the complaint upon' which to predicate such evidence. If such a situation had been in fact created, the supposition is at least permissible that having allowed the defendant to reopen the case and introduce the deed, the court would have allowed the plaintiff a like accommodation in the way of amendment to contest its operation. Such a course, however, would not have been necessary Earlier in the opinion we have said that in a divorce action, allegation of property owned by the husband and denial thereof by defendant, affords sufficient pleading to admit any evidence pro and con upon this point, without more definite or extensive pleading. Hence the court in such an instance would have had power to not only consider the deed but all proper evidence to limit or nullify its operation. The claim of the defendant that the presumption of continuance or continuity is one of fact, that is, justifying the trier in making a certain inference without further testimony, *184 unless and until met by evidence tending to rebut it, is correct. The application of the presumption is defined by the facts appearing in the case. When ownership has once attached, it is presumed to have continued until it has been shown to have ceased. The length of time over which such a presumption will extend varies with the nature of the property affected. Gray v. Finch, 23 Conn. 495, 513; Hall v. Wiggins, 33 Conn. 101; Donahue v. Coleman, 49 Conn. 464, 466; Chillingworth v. Eastern Tinware Co., 66 Conn. 306, 307, 314, 33 Atl. 1009; Lind v. Lind, 53 Minn. 48, 51, 54 N. W. 934; Magee v. Scott, 63 Mass. (9 Cush.) 148, 150; Zwisler v. Storts, 30 Mo. App. 163; 4 Wigmore on Evidence, § 2530; 2 Chamberlayne on Evidence, § 1033, § 1036. In the opinion in Magee v. Scott, supra, Chief Justice Shaw says: “The plaintiff is proved to be the owner of the property, and that right of property will continue until a change proved as by sale, lien, or voluntary loan. Whoever relies on such change must prove it; the proof lies on him.” In the instant case the court finds that “counsel for both parties agreed that the defendant inherited from his father an undivided sixth of the property described in the deeds.” It is evident that the presumption of continuity is properly indulged as to ownership of real estate as covering a much greater time than in many forms of personalty. ‘ ‘ When ownership of real estate is shown to have existed at any time, it is presumed to have continued until it is shown to have ceased.” Lind v. Lind, supra. Defendant also predicates error as to certain corrections of the finding as set forth in his exceptions. The first division of claimed errors relating to findings made by the court is not pursued in defendant’s brief. The exceptions to refusals to find additional facts relate to seven requested paragraphs, two of which were in fact complied with, and two abandoned in terms in *185 the brief. The three remaining are not established by the evidence printed in the record, and it certainly does not appear that they rest upon uncontradicted evidence. It may be added that in the unchanged and unrevised record on appeal as the same comes before us, the defendant has had an opportunity to make the same claims of law he might have made upon a record corrected as he asked. There is no error. In this opinion the other judges concurred.