Hanford v. Fitch , 41 Conn. 486 ( 1874 )

Park, O. J.

The petitioner seeks, by force of a mere technical right, to recover tlio possession of premises which have become of great value by reason of improvements made upon them, while it is evident that she abandoned all her interest in them nearly fifty years ago. During all this period she has paid no interest on the note which the mortgage of her property was given to secure, nor has she looked after the property, or showed any interest in it. She has done nothing whatsoever indicating an intention ever to redeem the mortgage until recently, and it is manifest that her desire to do so now is wholly owing to the great advance of the property in value since the mortgage was given.

The claim of the. petitioner is based upon the assumption that Cannon, the execution creditor, went into the actual possession of the life estate under and by virtue of the execution which was levied in his favor on the life estate of Zalmon Hanford, the late husband of the petitioner, and that both he and the parties claiming under him continued to hold possession of the land, under the execution levy, during the life of Zalmon Hanford. If this was so in fact, then the prayer of the petition should be granted.

But if such was not the case, if Cannon never took posession of the land under the levy of his exeution, but abandoned the interest lie acquired by the levy, and some two ■years subsequently went into the actual possession of the land under the mortgage interest which he had purchased, and claimed the entire property as his own under such purchase, and possessed it accordingly, and this possession was continued by the parties claiming the land under him, then the right of the petitioner has long since been extinguished.

Whether the one state of facts or the other existed in- this case, is the question we have to determine.

It appears in the case that for nearly half "a century the land in question has been held by absolute deeds; that during this period it has passed from grantor to grantee through many conveyances, the grantor in nearly every instance warranting the title in fee to his immediate successor; that the parties to these conveyances purchased the land in good faith, without notice of any claim whatever to it on the part of the petitioner; that the land was barren originally, and was poorly adapted to agriculture ; that it has been divided into building lots, and has been graded, drained and enriched at great expense; that trees and shrubbery have been set out and other improvements made upon it; and that dwelling houses, out buildings, and fences, have been erected upon it. Thus it appears that, during this long period of time, parties in possession of the land have constantly exercised acts of absolute ownership over it, and unless some unsurmountable obstacle prevents the running of the statute of limitations against the petitioner’s claim, the case is one of the strongest character going to show that the statute has long since extinguished her interest.

The only difficulty in the case arises from the fact that Cannon levied his execution on the life estate of Zalmon Hanford, and had it set off in part satisfaction of his debt, but whether he ever went into possession of the land under his levy, or claimed anything whatsoever from it, does not appear. It is found that he levied his execution, and there the finding leaves the matter. It is true that he was in possession of the land on the 18th day of June, 1822, nearly two years after the levy of his execution, but it is also true that three months previous to that time he purchased an outstanding mortgage on the entire property, and received a quit-claim deed of the same, which conveyed to him the legal title to the property. This accounts for his possession at that time, while there is an indication that his possession was under his quit-claim deed, in the fact that on that day he gave an absolute deed of the entire property, and warranted the title to his grantee.

There is nothing going to show any previous possession under the levy of the execution except the presumption of law that a party is in possession of land which he owns unless it appears to be in the actual possession of another. But this presumption has no reference to actual possession. It relates to constructive possession merely, and the rule was established for the benefit of the owner.

Nothing therefore appears in the case to show that Cannon ever in fact took or held possession of the land under his execution title, and the burden is on the petitioner to show that it was so held in order to avoid the running of the statute of limitations against her claims.

The life estate was of little or no value at the time of the levy of the execution, and there could have been but little object in keeping it alive. The land was barren, and poorly adapted to agriculture, and it is manifest that the life estate was not valuable for any other purpose. It required great expense to grade it for building purposes, and no man would think of .incurring the expense necessarily attending the erection of buildings on the land when it was held by so precarious a tenure. The life estate might terminate at any moment and valuable improvements consequently would be lost.

And furthermore, at the time that Cannon went into possession <3f the property under his mortgage interest, the entire property was not worth the amount of the mortgage, for he purchased it at less than the amount. The mortgage covered the entire property, and was the first incumbrance on it, and it is unreasonable to suppose that the owner of the mortgage would have sold it for less than the amount of the mortgage debt if the land was of greater value than the mortgage. It is therefore fair to presume that the life estate in the hands of Cannon was of no value when he went into possession of the land under his mortgage interest. This accounts for his not going into possession of the property under the levy of his execution. It accounts too for his conveying the property by a deed of warranty, for he considered his mortgage deed as equivalent to an absolute deed of the property, inasmuch as it represented its entire value.

We think therefore that the case shows that Cannon abandoned his levy for the benefit of the petitioner, and we may presume from the great length of time that the property has been held by parties in possession of the land, as absolute owners, that he quit-claimed to her all his interest acquired by the levy, and afterwards went into possession of the land under his mortgage deed. Similar presumptions are made in cases of landlord and tenant, where the tenant and parties claiming the land under him have for many years occupied the land as absolute owners. The law presumes in such cases that the tenant surrendered the tenancy to his landlord together with the possession of the property, and subsequently ousted him of the possession. It was so held by this court in the case of Camp v. Camp, 5 Conn., 291. In that case a tenant at will remained, after the death of the landlord, in the exclusive and uninterrupted possession of the land, claiming it as his own, for a period of fifty-seven years. It was held by the court, that although as a general rule a tenant is estopped to deny the title of his landlord, and although a person once a tenant will, primáfáeié, be deemed to continue in that character so long as he remains in possession of the land demised, yet it is competent for such person to show that the relation has been dissolved. And it was further held, that, from the long period of time that the property had b'een adversely held, the jury were authorized to presume a restoration of the land to the heirs of the lessor, and afterwards an ouster of them, thereby dissolving the relation which at first subsisted. The analogy of this case to the present one is apparent. There can be but little difference in principle, so far as the present question is concerned, between a tenant for life and a tenant for years. Acts of absolute ownership are as much inconsistent with the one as with the other, and if in the one case, where such acts have been long continued, the jury may be w arrantcd in finding that the property had been surrendered to the landlord, and an ouster afterward committed, so may the presumption we have stated be warranted in the case at bar.

The Supreme Court of the United States, in the case of Willison v. Walkins, 3 Peters, 43, says:—“ It is an undoubted principle of law fully recognized by this court, that a tenant cannot dispute the title of his landlord, by setting up a title either in himself or in a third person, during the existence of the lease or tenancy. . . The same principle applies to mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where one man obtains possession of real estate belonging to another by a recognition of his title. On all these subjects the law is too well settled to require illustration .or reasoning or to admit of a doubt. But we do not think that in any of these relations it has been adopted to the extent contended for in this case, which presents a disclaimer by a.tenant with the knowledge of his landlord, and an unbroken possession for such length of time that the act of limitation has run out four times before lie has done any act to assert his right to the land. Had there been a formal lease for a term not then expired, the lessee forfeited it by this act of hostility; had it been a lease at will from year to year, he was entitled to no notice to quit before an ejectment. The landlord’s action would he as against a trespasser, as much so as if no relation had ever existed between them.” This case is a strong one on the point we are considering. The court say,—“ Had there been a formal lease for a term not then expired, the lessee forfeited it by this act of Hostilitythat is, the assumption of absolute ownership of the property would forfeit a lease executed with all the forms of law and cause the premises to revert to the landlord, who might immediately treat his former tenant as a trespasser.

This case goes farther) perhaps, than our own courts would be prepared to go. We should, probably, have applied to the case the doctrine of Camp v. Camp, and have held that the disclaimer, taken in connection with the adverse possession of the premises, was sufficient to warrant the jury in finding a surrender of the tenancy to the landlord and an ouster after-wards. See also Blight’s Lessee v. Rochester, 7 Wheat.,535; Adams on Ejectment, 118; Buller’s Nisi Prius, 96.

We think therefore that the life estate of Zalmon Hanford terminated in the manner we have supposed when Cannon went into possession of the land under his mortgage deed; and that consequently there was nothing afterwards to prevent the running of the statute of limitations against the petitioner’s claim, for the law is well settled that a mortgagee may hold land adversely so that his possession will eventually ripen into an absolute title. Bunce v. Wolcott, 2 Conn., 27; Jarvis v. Woodruff, 22 Conn., 548.

The conclusion we have come to in the case is clearly equitable. The petitioner had ample notice from the acts of the parties holding the land, that they were not holding it under the levy of the execution, but in their own right as absolute owners, and for nearly fifty years she appears to have acquiesced in the right and to have abandoned her equity of redemption.

In coming to the conclusion at which we have arrived, we have not overlooked the fact that the petitioner, until the year 1869, was a married woman. If it were an ordinary case of adverse possession of her land, her coverture would save her from the application of the statute of limitations. But we think that a wife who joins with her husband in a mortgage of her land is not protected by her coverture from the ordinary effect of the adverse possession of the mortgagee. This adverse possession is not strictly against the legal title of the mortgagors; for, as between himself and them, he has the legal title, and they have as against him no right of entry to be barred ; but the adverse possession is against the equitable - right of the mortgagors to redeem, so that a court of equity in holding their right to redeem to. be barred by the lapse of time, is merely applying an equitable limitation, in analogy to the statute of limitations at law, and we regard it as equitable that the wife, who has voluntarily placed herself in the position of a mortgagor, should be held to have accepted all the usual conditions and incidents of the position, and that her right to redeem is lost in equity when there has been such a lapse of time as would in equity bar the right of an ordinary mortgagor to redeem. We think too, that, in view of the tendency of our legislation as well as of the decisions of the courts throughout the country, to recognize the separate rights of married women with regard, to their property, and their power to control the same, our courts should lean towards an enlargement of their responsibility and duty with regard to their property, and a curtailment of those exemptions and privileges that were given to married women as an offset for their want of power.

Wé advise the Superior Court to dismiss the petition.

In this opinion Carpenter and Phelps, Js., concurred, Foster and Pardee, Js., dissented.