Burr v. Spencer , 26 Conn. 159 ( 1857 )

Hinman, J.

The first question is whether an outstanding mortgage to a stranger, can be set up by a defendant, to defeat a recovery in an action of ejectment. This was the precise question which this court decided in the case of Porter v. Seeley, 13 Conn., 564, after great deliberation, and the court again, to this extent, expressly affirm that decision in the case of Smith v. Vincent, 15 Conn., 1. The authority of two recent decisions on the point ought to be sufficient, without further reference to authority, or any reasoning on the subject.

The plaintiff’s title was under, a quitclaim deed from Samuel Arnold and Isaac Arnold, and their title was by lease from the former proprietor, for the period of twenty years, which term being unexpired, the plaintiff was tenant for years, as he is alleged to be in the declaration. It is said, however, that he is only tenant for years of an equity of redemption, because he had mortgaged the property to the Arnolds. But if this mortgage can not be shown, as we have said it can not be, being to a stranger, then, as between these parties, it is the same as if it did not exist. There is therefore no variance between the title stated and the title proved.

For the purpose of aiding in giving a construction to the lease from Brainerd to the Arnolds, the defendant offered to prove the conversation between the parties to the lease in relation to the purpose for which it was given and received. He also offered to prove that the premises were principally wood and timber land with a quarry thereon, for the purpose of showing that the only object was to lease the right to quarry upon the land. The court rejected this evidence, and this is complained of by the defendant. If the terms of the lease were ambiguous in respect to whether the lessees took only a right to quarry stone upon the land, then perhaps, the fact that the land was such as not to admit of any other profitable use without committing waste, would be a circumstance proper to be considered in giving it a construction. But in this lease there is no ambiguity. No doubt the main object of the lessees was to quarry stone, because the rent is regulated by the amount and value of the stone quarried, and they were to have the use of a wharf for the purpose of hewing stones upon it and shipping them therefrom. But they are not restricted to this use of the land. The land within the specified boundaries is demised and leased to them in the ordinary form, and the right to quarry stone is superadded to the ordinary use to which the lessees were entitled. We think therefore that the court below was correct in excluding this evidence, as it most obviously went to vary the plain and explicit language of the lease.

Before the plaintiff took his deed, the Messrs. Arnold had by parol permitted their lessor to place the small house which stands upon the demanded premises, and is now occupied by the defendant, upon the land, and the defendant is in the occupation of said house under a parol lease from said lessor of the Arnolds ; but this fact was unknown to the plaintiff at the time he took his deed and at the time this suit was brought. The plaintiff finding by the record a clear lease to the Arnolds of the whole property, including the demanded premises, and having no knowledge that the defendant or any one else claimed any interest therein, obviously ought not to be bound by any parol licence from their lessors, even assuming that, as between the Arnolds and Brainerd, the parol licence was, under the circumstances, such that the Arnolds would have no right to interfere with the occupancy of the house which they had permitted to be placed upon the land. Had the Arnolds given a deed of the premises before they conveyed to the plaintiff, still, without any notice of such a deed, and in the absence of any record of it, the plaintiff would be protected, and surely a parol lease or licence can have no greater effect than a deed not recorded. We think therefore, that the court was correct in holding that this was no bar to the plaintiff’s right of recovery. On the whole case therefore we do not advise a new trial.

In this opinion the other judges concurred.

New trial not advised.