Tibbals v. Jacobs , 31 Conn. 428 ( 1863 )

Hinman, C. J.

We have no difficulty with most of the objections taken by the plaintiffs’ counsel to the rulings of the superior court. It is claimed, in the first place, that the court erred in not charging the jury that the deed of Joel Jacobs to Charles Jacobs and others, so far as it purported to convey an interest in the premises to John Jacobs and to Eleanor Hills at a time when they had no knowledge of the conveyance, was void, notwithstanding they both accepted it, and the terms upon which it was given, as soon as it was first brought to their knowledge. But this point is, well settled the other way. It was last before this court in the case of Merrills v. Swift, 18 Conn., 257, and it is there held, as the result of an examination of the authorities, that neither the presence of the grantee, nor his previous .authority to a third person to receive a deed on his behalf, nor even his subsequent express assent to it, is necessary tg' make the delivery of a deed valid ; but where the deed j's beneficial to him his assent will be presumed, unless ' ’ ’ ’ appears that he dissented. There was therefore no o: te ruling on this point.

In second place, it is insisted that the court should have •L'.yge, jhe jury that a secret understanding and agreement bc'.weob "the grantor and the grantees, that the grantor should rf'tpji ne possession of the premises, and have the use and '"u-.'omc thereof during his life, he having only a life estate in a portion of the property, rendered the deed void as matter of law This claim can not be sustained. The rule of law in re ,ct to the retention of personal property in the possession i t he vendor after a sale, has never been applied to real estate. ' Í where deeds are recorded, as with us, no good reason c "> be given for so stringent a rule. The true state of the .e can always be known by reference to the town records by ■ who will take the trouble to examine them. If a grantee n eglects to cause his deed to be recorded he subjects his land to a liability to attachment for the debts of his grantor, a consideration which is sufficient to secure the recording of the deed. Such an agreement, with other circumstances, may be evidence of fraud, but to apply the harsh rule in respect to retention if possession by a vendor of personal property after a sale to rey’ estate, would produce very great inconvenience with little eonw-p'..-. •.•in : benefit. This circumstance, with the other evidence m the xa:-a was properly left to the consideration of the jo-v, :;m'i ;h,' ■ > v ”ror in the omission to charge them '...i ';hv ' h v ;xs . uq? -ü • „

a. Tab , . ,... iv-d t i>-• ; should charge the jury that ci y ¡-.,. • info** fraud -ioj- ’'tract between the grantor; -id - •; grmw.m, e!a’----.sj ; pnvó l-eép. proved, that the grrutor 'r-'nb.i ho paid two h* -bid rud -bghty dollars to enable him ' px/ afi bis debts, . "but ho:->.t,uid ier^ir i possession of tilo x •,.....cy.a»- thd use o< it torn . • port and the support oí b- and if th-’ . m-uv ? r prove insufficient for this purpu. , ■' grantees bu.'- n the deficiency; although they migút -iso find xbm- ir v-., :act was in fact entered into in good faith. Aut if i o¡.. tract was lawful, as we think it was, and was A», . le in good faith, it is a contradiction in terms to say that .auJ nw/ be inferred from it. There was no error therefore in tlromission of the court to recognize this claim.

There was however a question of evidence in the case ¶, ■ '. we think was incorrectly determined. The grai > o • ■ ’ Jacobs, and his grantees, were the defendants in tK¡ Jw. ’■ The grantor was also in possession under the grantef- ¡ t y ; tue probably of the agreement made at the time the deed \ ; - executed. Now, as a defendant in possession, it was v>r ft interest to retain his possession, and therefore his inten '¡t w«, ¡ to defeat the plaintiffs in this suit. Besides, if judgment vent against him he was liable for costs. When the plaintiffs i c ¡re-fore offered to prove his declarations made previous tc she execution of the deed under which he claimed, because ha claimed under his own grantees, that he would dispose of 1 his property in such a manner as that he could not be compelled to support his wife, we do not see why they were not admissible against him at least, and whether against hi;.; grantees would depend upon whether there was evidence that they combined with him for such a purpose or not. Against liim they were strong evidence of just such a contemplated-fraud as the plaintiffs claimed. And they could have been admitted as against him and excluded as against the others if there was no evidence to connect them with him in the unlawful intention. And as we think they should have been so admitted, we on this ground advise the superior court to grant a new trial.

In this opinion the other judges concurred.