Somers v. Somers

The court has found that the defendant, at the time of the institution of this action, was in the occupation of such portion of the premises described in the complaint as he did occupy, under the unrevoked license and with the consent of the plaintiff. The subordinate facts found support this conclusion, as does the evidence which is before us for a correction of the finding. The plaintiff's own story furnished ample justification for it. She told the court that she and her husband had, from the time of their marriage, resided together upon the premises, which had once been his, and had later during their married life been conveyed to her; that she departed, leaving him there, without a word, and that no word has since, or ever, been spoken by her, or on her behalf, objecting to his occupation of the premises or his continuance therein, or requesting him to depart therefrom, or informing him that he was not as welcome to remain there as he had been during their life together. The defendant's testimony contributed another feature, which the court found as a fact, to wit, that it was agreed when the title was given to the wife that his home might be there for his life. Although this agreement was an unenforceable one at law, it was not without effect as characterizing his occupancy thereafter as one by consent and license.

We have, therefore, a situation where a licensor is attempting to dispossess her licensee, whose license had not been revoked, as a disseizor. This she may not do, as the latter's possession under such conditions was not adverse to her. "Where a person enters into possession by license and consent of the owner, or holds it by his consent, recognizing his right, . . . such possession is not adversary, but, in construction of law, is the possession of the owner." Hartford v. Hartford,49 Conn. 554, 561. There is no right of action in ejectment unless the defendant is a disseizor when the action is brought. Potter v. New Haven, 35 Conn. 520, 522. If it be said that the bringing of the action was of itself a sufficient revocation of the license to enable the action to be maintained as against a disseizor, the contention has no foundation in either reason or authority. Chalker v. Chalker, 1 Conn. 79, 91. We have held that a mortgagee may ordinarily maintain an action to recover possession of the mortgaged premises from the mortgagor who has remained in possession. This ruling was justified, however, only upon the theory that there was a peculiar relation between such parties involving an implied agreement, in the absence of an express one to the contrary, that the mortgagor might be treated as a disseizor without notice. Rockwell v. Bradley,2 Conn. 1, 5. More apt analogies are to be found in those decisions which hold that actions in trover and replevin cannot be maintained against one whose possession was originally rightful, unless that possession is converted into a wrongful one before the institution of the suit. Lynch v. Beecher, 38 Conn. 490, 493; Thompson v. Rose, 16 id. 71, 83; Parker v. Middlebrook, 24 id. 207, 209; Trowbridge v. Bosworth, 45 id. 166, 168. See also Forbes v. Suffield, 81 Conn. 274, 70 A. 1023. No right of action had accrued to the plaintiff when her action was brought.

There is no error.

In this opinion the other judges concurred.