Mead v. Fitzpatrick

Torrance, C. J. The trial court has found, without objection, that most of the somewhat numerous defendants have no rights in the land in question adverse to the plaintiff, ox-otherwise, and the contest here relates solely to the question whether the land is subject to the Fitzpatrick mortgage. The plaintiff, in his complaint, alleged that he had “ title in fee simple, without incumbrance,” to the land. This the owners of the mortgage denied. If the plaintiff has axxy substantial interest in the land, he is entitled to have determined the question whether the land is subject to the mortgage, but if he has no such interest, he is not so entitled. Purdy v. Ridgefield, 74 Conn. 74. Thus, one of the important questions in the case is whether the plaintiff acquired any interest in the land by his deed of conveyance from Newcomb. That deed was made in October, 1897. At the time it was made, and for nearly a year before, Newcomb, upon the facts found, was ousted of possession. The land was then, and for some time had been, in the adverse possession and occupancy of the owners of the Fitzpatrick mortgage; and neither Newcomb, nor his predecessors in title since Kellam, had ever been in the actual possession of the land. The owners of the mortgage were, at the time the deed under which the plaintiff claims title was delivered, in the actual and exclusive possession of the land as owners, holding Newcomb, the plaintiff, and all other per *524 sons out. This constitutes an ouster. Sherwood v. Waller, 20 Conn. 262; Merwin v. Morris, 71 id. 555. Under our statute (General Statutes, § 2986) the deed, under which alone the plaintiff claims any right in the premises, was void, and he acquired thereby no right or title to the land in question here. This being so, the plaintiff was not entitled to have determined, in this action, the question whether the land was or was not subject to the Fitzpatrick mortgage. The trial court, however, held that he was entitled, under his deed from New-comb, to an interest in the land, and thus the judgment -below was more favorable to him than the facts would seem to warrant; but of this neither the plaintiff nor any of the defendants complain here. The trial court also held that the plaintiff’s right in the land was subject to the Fitzpatrick mortgage, and of this alone he complains. Upon the facts found we think the court did not err in so holding. There is no error for which the judgment below should be disturbed. In this opinion the other judges concurred.