Lewis v. Lewis , 76 Conn. 586 ( 1904 )

Two altogether distinct classes of questions are presented upon this record, to wit: those which relate to the finding of the court that the plaintiff was entitled to have possession of the premises in controversy, and those which arose from the attempt to apply the provisions of § 4052 of the General Statutes to the situation disclosed. The appeal of Lewis and wife and Winship raises the questions of the first class.

These questions relate both to the finding of facts and the legal conclusions of the court therefrom. Various exceptions are taken to the finding, upon the grounds that facts are found without evidence, that undisputed and proven facts are not found, and that facts are found contrary to undisputed evidence. Our examination of the record with respect to the exceptions concerning facts material to any question of law, fails to disclose any instance in which a fact has been found without evidence, or an admitted or undisputed fact not found. With objections based upon claims of "facts proved" we have no concern.

Most of these claims involve the mistaken assumption that the direct evidence of a witness or witnesses, if not distinctly contradicted, constitutes undisputed evidence. This is far from true. There may be the best of reasons for discrediting witnesses. There may be circumstances in evidence which in the opinion of the trier ought to outweigh any amount of assertions. These matters all lie within the domain of the trial court. It is the final judge of what is to be believed and what not. These observations apply with peculiar force to the finding of the court with respect to the controlling features of the case involving the intention of the parties in the delivery and acceptance of the deed of March 10th, 1871, the character of the negotiations which resulted in the giving of the deed of July 10th, 1871, the scope of the submission to arbitration, the nature of the transaction as consummated, and the waiver therein of all claims arising from a breach of condition. The considerations which led to the conclusions reached are apparent from the evidence. The finding that there had been no breach of condition prior to John Lewis' final departure from the premises is deprived of its significance in the decision of the case by the other facts found.

These defendants' remaining claims of error addressed to this branch of the case are by their counsel grouped under six heads. The first four, to the effect that John Lewis, the original grantor, re-entered for condition broken and thereby defeated the estate of both Henry C. Lewis and the plaintiff, that the submission and award was as effective as a final judgment ousting both the life tenants as a judgment in ejectment would have been, and that William I. Lewis derived his title under the will of John Lewis and in no other way, are effectually disposed of by the finding. It is found that William I. Lewis took title by the deed of March 10th, 1871. The conclusion of law involved in this proposition is fully supported by the subordinate facts found. Moore v. Giles, 49 Conn. 570. The objection that the deed could convey no title, for the reason that the grantor was at the time ousted by the possession of Henry C. Lewis, is without foundation. The possession of a life tenant is not adverse to the remainderman or reversioner.Merwin v. Morris, 71 Conn. 555; Schroeder v. Tomlinson, 70 id. 348. The possession of Henry C. Lewis had not been converted into one adverse to John Lewis by the latter's assertion of any right for condition broken.

That John Lewis never made re-entry follows as a consequence of his conveyance of his interest on March 10th, 1871. No re-entry is claimed until subsequent to that date. William I. Lewis, who alone could thereafter make re-entry, could not avail himself of antecedent breaches of condition. Subsequent breaches of which he could take advantage do not appear. General Statutes, § 4051; Warner v. Bennett,31 Conn. 468; Lewis v. Lewis, 74 id. 630. Waiver is furthermore expressly found.

The submission and award related only to the amount to be paid to Henry C. Lewis. Nothing else was arbitrated. All else was covered by the agreement of the parties, and that agreement was based upon a waiver of all right to claim possession for any breach of the condition of the deed of August 28th, 1867. Any claim that the agreement extended to the interest of the plaintiff, or that the negotiations and transactions which culminated in the deed of July 10th, 1871, in some way terminated that interest, has no basis in any fact found. That interest does not appear to have been involved in the negotiations, and was not in form conveyed. Had it been otherwise, Henry C. Lewis' power to bargain away or convey the estate of his infant son does not appear. Had he the power to extinguish that estate by a breach of condition, his breach in conveying and surrendering his occupancy to William I. Lewis is one of which the latter cannot take advantage. Lewis v. Lewis, 74 Conn. 630.

The fifth claim of these defendants is that the payment of the $4,000 by John Lewis, under the award, estops the plaintiff from now making any claim to the premises. The answer to this claim is apparent. The submission, as we have said, did not involve any subject-matter save the amount to be paid Henry C. Lewis, and the award was of the amount to be so paid. The plaintiff's interests were in no way involved and cannot, therefore, be concluded by any compliance with the award.

The last claim consists in an appeal to the doctrine of laches and estoppel. It is said that the plaintiff is estopped from asserting his claim because he remained silent for thirty-two years after the transactions of 1871, and permitted the defendants to improve and sell portions of the property. In so far as this contention is founded upon delay in asserting title, it is to be observed that until the first life tenant's death, which did not occur until 1898, the plaintiff had no right of possession to assert. The defendants' possession as grantees of the estate of the first life tenant was a lawful possession and not adverse to the plaintiff. In so far as the claimed estoppel is based upon silence during improvements and sales, the sufficient reply made is that it does not appear that the plaintiff had knowledge of them or was under any duty to know of them.

No error, therefore, entered into the determination of the court that the plaintiff was entitled to the use and occupation of the premises for the term of his life.

The questions of the second class are raised in part by the appeal of the defendants Lewis and Winship, and in part by that of the plaintiff. The Lewises and Winship complain of that part of the judgment which requires them to pay the plaintiff the sums found to be equitable in order to entitle them to confirmations of their titles. The plaintiff complains of certain of the methods employed and principles applied in the ascertainment of said sums.

The defendants are clearly right in their contention that the court exceeded its power in the rendition of judgment. Nowhere in the statute is authority given to the court to require a defendant in dispossess proceedings in effect to purchase and pay for the plaintiff's property or interest in property regardless of the former's objection, and no such authority can be implied. Were such authority in terms given, a serious question as to the constitutionality of such legislation would at once present itself. This question, it is to be presumed, the General Assembly would be careful to avoid, and the provisions and history of the Act show that such care has been exercised.

The question next suggests itself as to the nature of the judgment which the statute authorizes where, as here, the prevailing plaintiff has elected to have the title confirmed in the occupant and the occupant has signified his refusal to accept the title and pay the ascertained equitable equivalent. This question, suggested by our legislative attempt to deal in a brief and summary manner with a by no means simple subject, to which, in other States, more sections are devoted than there are lines in our statute, would, in a proper case for the application of the statute, involve important considerations. We have no occasion, however, to enter upon their discussion, since we are satisfied that our statute was not intended to be and is not applicable to a situation such as this case presents. The language of the statute prompts the query whether it was designed to apply to any case in which the plaintiff was not the owner of the fee. No limitation to be sure is expressed, but the sum which it is in terms provided shall be ascertained and paid by the plaintiff is the present value of the improvements, and not, under any circumstances, some share thereof appropriate to the estate which the plaintiff will acquire in them. Again, the section provides for the confirmation of the occupant's title in a certain event, apparently assuming that the claimant must have that whereby such confirmation might be made. See Burkle v. Ingham, 42 Mich. 513.

It is claimed, however, that the statute is one which is to have an equitable application, and may be moulded in the general manner in which the trial court sought to do, so that the spirit rather than the letter shall control. If we so assume, there yet remain cases — of which the present is a good example — of such a character that it is incomprehensible that they were intended to be brought within its scope, so inapt are its provisions, so inadequate are they to the accomplishment of equity, and so impossible are they of any intelligent application.

The plaintiff has only a life estate. The deed which created it made it one upon conditions. Lewis v. Lewis, 74 Conn. 630. These conditions in terms limit the plaintiff's enjoyment of the premises, in that they forbid him selling or in any way conveying to others any part thereof, and require him to live on and occupy them during his life. These limitations, furthermore, if they continue to be effectual, are such as would have an important bearing upon the beneficial value to the plaintiff of the improvements in question. What their consequence would be in this regard would depend upon the interpretation and effect which is to be given to the language immediately preceding the habendum. Interpreted in one way it would seem to reduce that value to small, if not invisible, proportions. We have no occasion to make this interpretation. It is enough to indicate, as we have, the uncertainties attending the situation, and to note that in any contingency the plaintiff cannot have the full beneficial use of the improvements even during the continuance of his estate.

The plaintiff, however, claims that these limitations, whatever their extent, are no longer operative, (1) because the condition as to occupancy was on July 10th, 1871, waived by William I. Lewis, under whom all the present owners hold, and (2) because all the conditions are void as being against public policy. The waiver, which is expressly found, is one of a right to take advantage of existing breaches of condition, and not of the conditions themselves. The transaction of that date was the buying in by the owner of the reversion of an outstanding life estate. There can be no fair legal implication therefrom, or from any incident thereof as found, of a waiver of any condition attaching to a succeeding independent life estate not the subject of the negotiations or conveyance which resulted.

With respect to the second claim, it is to be observed that the provisions in question created conditions through which the estate which vested might be defeated, and not restrictions. In the former action all the parties concurred in that construction, which we then adopted as being in consonance with the apparent intent of the parties gathered from the whole instrument, although it was not expressed in any of the more customary formulas or in the clearest manner. A condition of forfeiture upon alienation is one which may be validly annexed to a life estate. Gray on Restraint on Alienation, § 72, and cases there cited. The condition as to occupancy is not one either impossible, unlawful, or incompatible with the estate to which it is annexed, and we discover no reason to hold it void.

We have, therefore, a situation in which the claimant has only a life estate and the occupants are the owners of the reversion. The plaintiff's estate discloses the following incidents: (1) It is a life estate only, and therefore terminable in favor of the defendants at any moment by his death. (2) It is an estate to which are annexed conditions by virtue of which it may be divested at any time within the plaintiff's life, which time cannot be approximated or estimated upon any law of average. (3) It is an estate the conditions of which limit the plaintiff's beneficial enjoyment of the premises. (4) It is an estate the conditions of which would render certain of the improvements of little or no beneficial value to the plaintiff, and all of them of a restricted value dependent in extent upon judicial construction as to the interpretation to be placed upon the language imposing the conditions. It is inconceivable that the General Assembly intended to make our statute applicable to such a situation, and by no means easy to discover how it could be judicially moulded so as to admit of an equitable application to such uncertain conditions, and what standards should be employed in the attempt. It is quite certain that if any such scope was intended to be given to the statute more apt language would have been used, more careful provisions made, and less left to judicial conjecture and construction.

In view of the conclusion which we have reached as to the inapplicability of the statute, the plaintiff's reasons of appeal do not call for a further consideration than has already been incidently given them, except to observe that in the assessment of damages, which the complaint calls for, the plaintiff is entitled to be allowed the fair rental value of the unimproved property for and during the time he was unlawfully dispossessed, subject of course to any proper deductions. The defendants can claim no reduction from this rental value by reason of any limitations imposed upon the use of the premises while in the plaintiff's possession. The court below seems not to have observed this rule in ascertaining the amount due for past rents and profits. In this there was error.

There is error, and the judgment is set aside and the cause remanded to be proceeded with according to law.

In this opinion the other judges concurred.