Averill v. Sanford

Carpenter, J. The material facts in this case are briefly these: In February, 1862, Nathaniel H. Wildman was insolvent, and Ira Morse was appointed trustee of his estate. Certain real estate owned by him was then subject to a mortgage to the Danbury Savings Bank. In April following, Morse deeded the equity of redemption in the premises to Alexander Wildman, which deed was in fraud of the rights [346] of the creditors of the estate. In July the respondent Sanford became the owner of the mortgage, and brought a petition to foreclose, making Morse and Alexander Wildman respondents. They failed to appear, and failed to redeem within the time limited; but, subsequently, on the 4th day of November, Wildman purchased Sanford’s interest in the property, paying to him the debt secured by the mortgage, and the costs thereon, all of which was in pursuance of the same fraudulent intent. In March, 1863, Morse was removed from the office of trustee, and Samuel O. Wildman was appointed in' his stead. On the 9th of February, 1866, the trustee, pursuant to an order of the court of probate, sold the premises to David B. Booth, Esq., who purchased the same as agent of the petitioner, and who subsequently conveyed the property to him. Neither party to the last mentioned deed had any knowledge of the prior deed from Morse to Alexander Wildman, and the deed from Sanford to the latter was never put on record. The petitioner acquired his title in good faith, and the creditors have received the benefit of the consideration paid. This petition is brought to redeem the premises. The Superior Court granted the prayer of the petition, and Wildman, the only respondent who has any interest in the matter, brings the record before this court by motion in error, and also files a motion for a new trial. Under ■ each of these motions one question is presented for our consideration. 1. The error assigned in the first motion is, that upon the facts found the deed from Samuel C. Wildman to Booth, and consequently the deed from Booth to the petitioner, were inoperative and void, for. the reason that at the time of the execution of the former Samuel C. Wildman was ousted of the possession of the premises, Alexander Wildman being in possession, as he claims, under a claim of title. . We do not stop to inquire whether the statute against the sale of pretended titles has any application to a case like this, as we are satisfied that the facts found fail to show an ouster within the meaning of the statute. The character and nature of Alexander Wildman’s posses [347] sion do not distinctly appear. Indeed Ms possession does not appear at all except by way of inference from tbe fact found that he received tbe rents and profits. But tbe receipt of rents and profits is not only insufficient of itself to prove an ouster, but is consistent with tbe supposition that bis possession was in some way subordinate to tbe title of tbe trustee. There is some presumption that such was tbe character of bis possession from tbe fact that bis paper title bad been kept a secret. But tbe whole matter is conclusively set at rest by tbe express finding of tbe court, that “ at tbe time of tbe sale and conveyance by S. O. Wildman be bad not been ousted, but was in tbe legal possession of tbe premises as trustee.” The other errors assigned are not relied upon and we do not consider them. 2. It appears from tbe motion for a new trial that tbe respondents, for tbe purpose of proving possession in Alexander Wildman, offered oral evidence to show that during the time in question be included tbe premises in bis list of taxable property returned to tbe assessors. This evidence was objected to by tbe petitioner and excluded by tbe court. We tbmk it was properly excluded. The list was a written document, and .should have been produced. If, on its face, it appeared that tbe premises were included, that would not only have been tbe best evidence, but the only evidence required. If it did not so appear, but was in fact included, parol evidence would have been admissible to show it. But parol evidence without tbe list was inadmissible. There is no error and we do not advise a new trial. In this opinion tbe other judges concurred.