Clark v. Beach

Daggett, J. Several objections are made against the judgment of the superior court. 1. It is said, that as the cause might have been appealed from the county court, to the superior court, no writ of error will lie. It is true, an appeal might have been taken from the judgment of the county court. The statute entitled “ an act for the regulation of civil actions,” sect. 62. allows an appeal from the judgment of the county court to the superior court, “in any action brought to, and tried by the county court, wherein the title of land is drawn in question, and determined,” &c. This action was “ brought to” the county court from a justice of the peace, under the 65th sect, of the act, in conformity with the prescription of the act, the defendant having justified under a plea of title. The words comprehend the case ; analogy justifies the practice; and, it is believed, such has been the uniform construction of the statute. It is, however, urged, that no writ of error will lie. The 69th sect, of the act declares, “ that writs of error may be brought to the superior court, from the judgments of the county and city courts, and of justices of the peace, for any error in the same, to be proceeded with according to the course of the common law,” &c. This writ of error is brought to the superior court from a judgment of the county court. It is embraced by the words of the act; and 1 have no doubt that it will lie. 2. Another question is, were the declarations of Benjamin Beach in relation to the bounds, admissible ? The bill of exceptions does not allege when the declarations were made, nor show their relevancy to the point in issue. This court cannot see, if it could conjecture, that they could bear on the issue; and this is necessary to justify their admission. If they were made before B. Beach was the owner of the land, they ought [150] not to have been received. Equally uncertain is it, from inspecting the bill of exceptions, whether the bounds being at one place or the other, could affect the question, whether a trespass had been done. In Vernon v. East-Hartford, 3 Conn. Rep. 482, the principle is recognized, that the motion or bill of exceptions must show that the testimony objected to was relevant, otherwise the court of revision will not sanction its admission. 3. The only point on which I think the decision of the superior court incorrect, is, in deciding, in opposition to the opinion of the county court, that the mortgage deed from Lydia Mills to Abby Betsey Mills, was not proper evidence in support of the plea of title pleaded by the defendant. In this plea of title, it was alleged, that "Abby Betsey Mills was the true and legal owner of the land on which, &c., and was then and there lawfully seised and possessed of the same." As the defendant Clark justified under the licence and authority of Abby Betsey Mills, the deed was good evidence, as was supposed, in his defence. Sinzeon Beach contends, that the deed being a mortgage, though the law-day had expired, and though th~ mortgagee had gone into possession, by an agreement with the mortgagor, as the bill of exceptions finds; yet it did not prove, that Abby B. Mills was the true and legal owner, and was seised and possessed of the land, &c. in support of this position, The King v. St. Michaels, Doug. 632. is cited. There, Lord Mansfield said. on a question whether a mortgagor gained a settlement, "It is an affront to common sense, to say the mortgagor is not the real owner." Numerous decisions of the supreme court of New-York and Massachusetts, are in accordance with this doctrine. In Connecticut, the same general principle has been repeatedly recognized. In Barkhamsted v. Farmington, 2 Conn. Rep. 600, it was decided, that the mortgagor was to be regarded as the owner of the land to every purpose, except the right of possession; and in Fish v. Fish, 1 Conn. Rep. 559. a widow of a deceased mortgagor was adjudged to be entitled to dower in an equity of redemption. In Huntington v. Smith, 4 Conn. Rep. 235., it was holden. that the interest of the mortgagee in mortgaged premises could not be taken in execution, after the expiration of the law-day; and in Leonard v. Bosworth, 4 Conn. Rep. 426. a mortgage was decided to be not an alienation within the statute against selling pretended titles. I am not disposed to question or impair the authority of these cases; nor does the point in examination require it. But we [151] will look at some other decisions bearing directly on the point in discussion. In Keech v. Hall, Doug. 21. Lord Mansfield decided, that a mortgagee might recover in ejectment without notice to quit. In Jackson v. Dubois, 4 Johns. Rep. 216. it was holden, that the mortgagee might maintain ejectment against the mortgagor and those that claim under him. In Rockwell & al. v. Bradley, 2 Conn. Rep. 1. the doctrine in Keech v. Hall, was directly sanctioned, as also in Wakeman v. Banks, 2 Conn. Rep. 445. In Newall & al. v. Wright, 3 Mass. Rep. 138. 152. Chief Justice Parsons laid down the law as follows : “ It is very clear, that when a man seised of lands in fee, shall mortgage them in fee, if there be no agreement that the mortgagor shall retain the possession, the mortgagee may enter immediately, put the mortgagor out of possession, and receive the profits ; and if the mortgagor refuses to quit the possession, the mortgagee may consider him as a trespasser, and may maintain an action of trespass against him, or he may, in a writ of entry, recover against him as a disseisor.” I am satisfied, that this opinion is consistent with the contract of the parties to the mortgage, and that there is no established doctrine opposed to it. The mortgagee is well seised against the mortgagor, and certainly against all strangers, so as to enable him to maintain trespass or ejectment. This right of the mortgagee appears essential to the protection of the pledge; and without it, he would be without security-his pledge would be useless. But without the aid of these principles, so reasonable and just, the deed in question, was undoubtedly admissible. The issue was joined on the plea of the defendant, founded upon the 65th sect. of the statute above quoted. The last clause of that sect, is as follows : “ and if on trial, before such court, (that is, the county court to which it has been removed, by previous provision,) he shall fail to make out a title paramount to the title of the plaintiff, he shall pay treble damages and cost.” The defendant, then, under this statute, is bound to make out a title paramount to that of the plaintiff. With this object in view, he offers a mortgage deed to the person by whom he was authorized to enter, and who had gained a possession by the agreement of the mortgagor. As yet, no title, of any description, is shewn to exist in Simeon Beach, the plaintiff. It does not appear, whether he claims under any title, or whether he is a mere stranger. Why, then, may not Clark show a title by mortgage in A. B. Mills, under whom he has entered, and by [152] whom he has been put in possession, to justify, in this action of trespass ? Whether this title will appear to be paramount to that the plaintiff, cannot as yet be ascertained. If the mortgagee has any interest in the pledge, it is superior to that of a mere stranger, upon the view of the case as presented when the deed was offered. It should, therefore, have been admitted ; and the county court was correct in receiving it in evidence. It is again said, that upon the authorities above cited, the deed did not prove the averment of seisin, in the technical sense of the term. Be it so, for the sake of argument, but for no other purpose; what then ? It proved some degree or kind of title, if the mortgagee gets any title by the mortgage, and that he does, is not denied. This Court decided, in the case of Hitchcock v. Hotchkiss, 1 Conn. Rep. 470. that “ where land, in which the debtor had an estate for life only, is levied upon, appraised and set off as an estate in fee simple, the creditor acquires a title to the estate, which the debtor had.” In an action of ejectment, the plaintiff may recover, if he proves a right to the possession, though he alleges his quantity of interest to be greater than it is proved to be. A declaration in ejectment counting on a seisin in fee, would be sustained, by proof of an estate for life. In every view of this case, I am satisfied, that the opinion expressed at the circuit, that the deed from Lydia Mills to A. B. Mills was not admissible, was incorrect; but as the judgment of the county court was erroneous in the admission of the declarations of Benjamin Beach, the superior court was correct in reversing it; and, of course, the judgment of the superior court must be affirmed. Peters, Brainard and Lanman, Js. were of the same opinion.