Sherwood v. Waller

Ellsworth, J. In this case, we discover no error for which a new trial should be granted. The facts stated in the declaration are found to be true; so that we assume, that the defendant conveyed the premises in question to Morris B. Barlow, while neither he nor Barlow was in possession, but there was an adverse holding, with his knowledge. We do not stop to enquire as to the defendant’s admission after giving his deed, that he sold the land to Barlow, and not some supposed interest in the land; for this objection has not been much pressed upon the court. The error, if any there be, is in the charge of the judge to the jury. The plaintiff claimed to have proved the ouster of the defendant, and possession by the eleventh school district, before and on the 20th of May 1847, at which time the defendant deeded the premises to Barlow. Much evidence was introduced to establish this fact. The plaintiff offered to prove, that as early as 1817, the school district took possession of the land, built a school-house upon it, and ever thereafter occupied, until 1845, when the building was destroyed by fire; and that soon after, in the same year, the district contracted with the defendant for a purchase of the lot, and then received a deed, which was duly recorded; that they built a new school-house upon the site of the old one, which they have ever since exclusively occupied. These facts are not denied by the defendant; but he claims,that when the first schoolhouse was burnt, he took possession himself of the land, and enclosed it with his adjoining land, and forbade the district erecting a new school-house. He however admits, the district did not regard his prohibition, but proceeded, at once, to erect and finish a new house, and to occupy the same for a district school; and he denies that this possession constituted an [270] ouster, because he says, he had proved to the jury, that when he delivered his said deed to the district, he expected to be paid the consideration money, which he then demanded, and he refused to take the note of the district which was offered him in payment; for he questioned the authority of the agent to bind the district. The money not being paid, he demanded a return of the deed. The district refused to give it up, went immediately into possession, completed their school-house, and have used it as already stated. The defendant now claims, that the aforesaid facts, if true, prove, that the title and possession of the district were fraudulent and inoperative, and that the possession of the district under their deed of 1845, however adverse or exclusive in fact, could not be held to be so in law, against the defendant, and was, therefore, no ouster or disseisin. To this claim of the defendant we cannot give our assent. Whatever may be said as to the title of the district, clear it is, their possession, (and we have to do only with that,) is not necessarily any the less a disseisin, because the title is in dispute. The district possessed the premises, as owners; they had a real possession, under a claim of right, as distinguished from a possession under a pretence or trick. Such a possession, if continued for fifteen years, would make a perfect title in the occupant, as was held by this court, in French v. Pierce, 8 Conn. R. 439. The error into which the counsel for the defence have fallen, is, not properly distinguishing between a title, and an actual bona fide possession. We do not say, that even a specific claim of right was necessary. An actual, exclusive possession, as owner, is enough to constitute a disseisin; for such holding is not under any person, but is independent of all persons whatever. However, in this case, there was a claim of right, by the district, under their deed of purchase; and probably they would controvert the defendant’s lien, or at all events, that they obtained possession, by any unfair practice. The facts show they were in possession by themselves, and had been, some thirty years. Another claim of the defendant, is, that under the deed of the defendant to the district, they had only a conditional estate, which might be forfeited, by the district’s putting the land to any other use than for a school-house; and that this pos [271] sibility remaining in the defendant, might be conveyed to Barlow, and that this was the interest intended to be conveyed, by the deed of the 20th of May 1847. We do not decide whether the defendant had, or had not, any interest in the premises after his deed to the district, which he could convey to Barlow. We only say, that the deed in question does not purport to convey any such interest. The deed is in common form, as a primary conveyance of the fee of the land, and not of some possibility or peculiar interest in reversion. The deed is prima facie a conveyance of the land; and the defendant introduced no evidence to qualify the natural import of the deed. The same may be said of the claim that the deed to Barlow, was a conveyance only of the defendant’s lien for the purchase money. No debt was assigned to Barlow. Nothing is said in the deed itself, nor proved aliunde, about the conveyance of a lien for money. We do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.