Town of Barkhamsted v. Town of Farmington

Swift, Ch. J. By our statute respecting settlements, an inhabitant of the state may gain a settlement, by being possessed of an estate, in his own right in fee, of the value of one hundred dollars, during his residence therein. It is not required, that the purchase money be paid, or that the purchaser should hold it for any length of time. It is sufficient, if he is possessed in fee, during the shortest conceivable period of time. It appears, that Eliakim Peck, the father of the pauper, purchased in Colehrook an estate in fee, by deed duly executed, of more than the value of one hundred dollars; and that he mortgaged it, at the same time, to secure the purchase money. But the title of the land must have vested in Peck, before the mortgage could have taken place j for they were distinct conveyances. Of course, there was a time when Peek was possessed in fee of the land ; and by operation of She,statute, he gained a settlement thereby in Colehrook. It is said, that by such construction of the statute, paupers may easily gain settlements in towns. If such purchase should be made with a fraudulent intent, to impose the burden of supporting a pauper on a town, such fraud would defeat it 5 but if done bonajitle, a court of law cannot cnntroul the effect of such conveyance. If any Inconvenience is to be apprehended from this source, it belongs to the legislature to provide the remedy. Gouim, J. The only question is, whether Eliakim Peck, the father of the pauper, gained a settlement in Colehrook, under the conveyance made to him, by Phelps. For if the father thus acquired a new settlement, it was, of course, communicated to tiie s*>n, who was a minor belonging to his father's family. I am of opinion that Eliakhu. did thus gain [604] a settlement in Colebrook ; and that the direction to the jury was. therefore, right. The grounds of the motion are two : First,.that the interest, acquired by Eliakim, the father, under the deed from Phelps, was merely equitable ; and, secondly, that the value of this interest was not sufficient to confer a settlement. Both these questions depend upon the construction of our statute | (til. 91. s. S.J under which, Eliakim, to have gained a settlement in Colebrook, must have been “ possessed, ⅛ his own right, in fee, of a real estate of the value of 100 dollars,” in that town. And I am fully satisfied, that he was there possessed of such an estate, within the meaning of the law. It is not correct, in the first place, to say, that the estate of Eliakim Peck was a mere equity, at the time, to which the question relates. The equity of redemption, upon a mortgage, does not accrue, until there is a forfeiture, by a breach of the condition. But, at the time, when Eliakim must have acquired a settlement in Colebrook, if he acquired it, at all, the condition of the mortgage-deed was n&t broken. His right, of redemption was, then, at law. It might also, in strictness, be urged, that the conveyance from Phelps to Eliakim, vested the latter, at the time of the delivery of the deed, with the absolute fee, at law : for though the absolute deed from Phelps, and the mortgage-deed back, were, doubtless, given in pursuance of one entire original agreement | still, it is not true, that the two deeds constituted but one conveyance, or were, in any proper sense, component parts of one instrument, or common assurance. The mortgage-deed, given back, by Eliakim, qualified the interest conveyed to him by the absolute deed ; but did not, and could not, qualify, or affect, the latter deed itself. For the legal effect, or construction, of the one could, in no degree, be varied, or influenced, by the other. And if the legal fee once vested in Eliakim ; it seems immaterial, under our statute, whether it continued in him, for any particular period, or not: since the statute does not require any given continuance of title, or possession. But waiving these, and all other narrow, or technical, grounds, I choose to found my opinion upon the broader one, that the equity of redemption upon a mortgage in fee, is a» [605] estate in fee, as effectual to confer a settlement, as a legal fee. It is now too late to question the general doctrine, that the mortgagor, in such a case, is the owner of the land, and to be regarded, as such, at law, to every purpose, except the right of possession, which is at the controul of the mortgagee. This rule is established, by such high and multiplied authority, that it is no longer open to debate. Martin v. Moulin, 2 Burr. 965. Rex v. St. Michael’s, Bath, Doug. 630. Rex v. Parish of Edington, 1 East, 288. Jackson v. Willard, 4 Johns. Rep. 41. Hitchcock v. Harrington, 6 Johns. 290. Sedgwick v. Hollenback, 7 Johns. Rep. 376. According to this doctrine, Eliakim owned the fee of the land, and was seised of it, to every practical purpose, for about two years. The statute requires, that he should have been « possessed, in his own right, in fee, of a real estate,” &c. Now, if there were no other case, to prove, that he was possessed of such an estate ; that of Fish v. Fish, determined in this Court, June term 1816, (1 Conn. Rep. 559.) w ould be decisive of the point. The question, in that case, arose upon a claim of dower. The statute of dower entitles the widow to a life-estate in « one third part of the real estate of her deceased husband, in houses and lands, which he stood possessed of, in his own right,” &e. In the statute of settlement.-, the clause, upon which the present question arises, provides, that an inhabitant of one town in this state, must, to gain a settlement in another, be “ possessed, in bis own right, in lee, of a real estate,” &c. in the latter town. Under the former of these statutes, it was resolved, in the case of Fish v. Fish, that a mortgagor in possession, under a forfeited mortgage in fee, was possessed of the realty, in his own right, and that his widow wras, therefore, entitled to dower. Now, as these two statute-provisions are, in their terms, almost identical, and to every purpose, material to the argument, entirely so ; I regard the case of Fish v. Fish, as decisive, that an equitable interest may give a settlement. It is objected, however, in the second place, that the statute requires a real estate « of the value of 100 dollars and that the value of Eliakim Peck’s interest, under the deed from Phelps, did not amount to this sum — in other words, that his interest was equal in value, only to the part, which he had advanced, of the purchase-money. But if the principles, I have just advanced, an' correct, he was the owner of [606] the land, which was w oríh 190 dollars : and the objection, that the laud was pledged lor the residue of the purchase-money, has only the saint* bearing upon the question, as to say, that that residue was unpaid, '.¡’here are provisions, in the English settlement-laws, requiring, in addition to the purchase of an estate, a particular period of residence upon it, and the actual payment of a certain sum, as purchase-money : hut the provision in our law, upon which the present question depends, prescribes no such requisites. Suppose, then, that Eliakim Peck had owed 190, or 10,000 dollars, for which this land might have been attached, or had been actually attached, within a month, a week, or a day, after his deed from Phelps; Or suppose, that, instead of giving hack a mortgage, he had given his own personal security, for the whole purchase money, payable in ten days, or on demand | and that, on failure of payment, the land had been attached, and afterwards set off on execution. In either of these cases, lie would, confessedly, have gained a settlement. And what difference could it make, in principle, or practical effect, \\ bother he had taken the one, or the other, of these courses. The town of Colebrook would have been as secure against the risk of his becoming chargeable, in the one case, as in the oilier, and no more so. Our law' of settlements recogni-ses no such thing, as raising an account current, and striking a balance between the amount of what a man possesses, and what he owes. It is sufficient, in this case, that Eliakim Peck ts possessed a reul estate, of the value of 100 dollars.’* The suggestion, that according to these principles, the paupers of one town may, by sham conveyances, be shifted upon another, has, in my judgment, very little weight in it. That any one town would attempt such a fraud upon another, is not to be presumed, under any circumstances ; but especially, when it is considered, that no one town is more exempt, than any other, from the practice, or retaliation, of such frauds. In courts of justice, at any rate, the proper time to consider the question of fraud, will be, when that question is made. And if the law, as it now stands, is open to frauds of this kind ; it is the business of the legislature, and of the legislature only, to guard against them. The other Judges were of the same opinion. New trial not to he granted.