Bowne v. Ide

• Decision Date: 13 June 1929
• Citation: 147 A. 4,109 Conn. 307
• Court: Connecticut Supreme Court
• Parties: BOWNE ET AL. v. IDE ET AL.

147 A. 4

109 Conn. 307

BOWNE ET AL. v. IDE ET AL.

Supreme Court of Errors of Connecticut.

June 13, 1929

Appeal from Superior Court, Windham County; Edward M. Yeomans Judge.

Action to determine and quiet title to real estate by Richard G Bowne and others against Samuel L. Ide and others. Judgment that plaintiffs have an absolute title to land and that none of defendants have any estate, interest in, or incumbrance on land, and defendants appeal. No error.

The court found these facts: On May 23, 1903, Edwin P. Child then unmarried, deeded to Prentice W. and E. A. Morse, upon terms stated therein, certain of the standing timber on a tract of land in Woodstock owned by him. On June 18, 1904 these grantees deeded all their right to this timber to the defendants Arthur T. Bemis and Harris M. Dodge. On April 18, 1904, Child conveyed this tract with other land to Annie L. Carpenter in consideration of her marriage to him, which was duly performed, together with all the conditions of the agreement. On August 31, 1906, a deed bearing date August 24, 1905, containing the names of Edwin P. Child and Annie L. Child as grantors, and purporting to convey this land to defendants Bemis and Dodge, was recorded in the Woodstock land records. This deed was drawn in Massachusetts and there signed and acknowledged by Edwin P. Child. The deed, which was lost, was never signed or acknowledged by Mrs. Child. There was only one attesting witness, who is now dead, to the signature of Annie L. Child as it appeared of record. Bemis and Dodge by deed dated November 27, 1920, and recorded February 3, 1921, conveyed all their interest in this land for $3,500 to defendants Samuel L. and Eugene D. Ide, who by deed dated January 27, 1927, and recorded June 30, 1927, conveyed to defendant Stanhope all their right in this land for $5,250. No timber was cut nor was there any other act of possession by the defendants or their predecessors while Mrs. Child was living. Edwin P. Child died March 8, 1917, and Annie L. Child in March, 1923. On November 7, 1922, Mrs. Child signed and executed a warranty deed of this land which was placed in the hands of Charles L. Torrey to be delivered to plaintiffs upon payment in full of the purchase price of $850, which deed was not delivered in the lifetime of Mrs. Child. On December 1, 1923, the administrator of the estate of Mrs. Child, in accordance with an order of the court of probate for the district of Woodstock, conveyed this land by deed, which was duly delivered and recorded, to the plaintiffs. The deed was made upon application of the administrator and was based upon a contract entered into by Mrs. Child and plaintiffs a short time prior to her death. No bond was given by the administrator and no bond ordered by the probate court in the matter of this conveyance.

The court concluded: That the deed by Mrs. Child to Bemis and Dodge was not signed by her and, being only attested by one witness and not acknowledged, was void, even if signed by her, and that the title to this land was in the plaintiffs under the deed from the administrator of Mrs. Child.

William A. King, of Willimantic, and Ernest C. Morse, of Putnam, for appellants.

Samuel B. Harvey and John B. Harvey, both of Willimantic, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J. (after stating the facts as above).

defendants' appeal assigns as error the overruling of their claim that the present action is not maintainable under section 5113 of the General Statutes 1918. Their claim is that the only appropriate remedy to redress the grievance which constitutes the plaintiffs' real cause of action--an unlawful entry and occupation of land--was an action of ejectment or trespass. defendants' answer to the complaint, without raising this point, was a waiver of their right to contest it. But had they duly made the point it must have been overruled. The action under the statute is one to determine conflicting claims as to any interest, lien, claim, or title to real or personal property and to quiet and settle these claims and title. Since the amendment of this statutory remedy by Public Acts of 1915, c. 174, this action may be maintained by one out of, as well as by one in, possession of land. Gaul v. Baker, 105 Conn. 80, 83, 134 A. 250.

The defendants' source of title is through a deed purporting to convey the interest of E. P. and Annie L. Child in the land which plaintiffs claim title to by virtue of a deed from the administrator of the estate of Mrs. Child. Upon the trial the plaintiffs, against defendants' objection, were permitted to testify that Annie L. Child, prior to her death, told them that she did not sign this deed through which defendants claim title. The trial court found that Mrs. Child never signed this deed, and as a consequence that the title to this land was in the plaintiffs under the deed from the administrator of Mrs. Child.

The admission of these statements was upheld under Gen. St. 1918, § 5735, which provides that: " In actions by or against the representatives of deceased persons, the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence."

" Representatives of deceased persons," as found in this statute, has for over 40 years received the authoritative interpretation of this court. " It seems clear to us," we say in Lockwood v. Lockwood, 56 Conn. 106, 110, 14 A. 293, 295, " that to constitute one a representative of a deceased person he must take some portion of his estate in consequence of his death, either as devisee or heir, or else he must be strictly a personal representative, as executor or administrator." The action here is, in effect, one between an alleged grantee of the deceased and a grantee of the administrator of the deceased in carrying out the contract of the deceased, which is the equivalent of a contest between successive grantees of the deceased under deeds made in her lifetime.

Later, while recognizing that the interpretation in Lockwood v. Lockwood, supra, was not within the strict requirement of this case, we reaffirmed it in Pixley v. Eddy, 56 Conn. 336, 340, 15 A. 758, and also held the statute to be broad enough to include distributees and all personal and legal representatives. " Representatives of deceased persons" have not heretofore been, and cannot be, held to include a grantee in the situation Mrs. Child was in; otherwise, the words must be interpreted to include any owner whose chain of title might disclose a representative of a deceased person. Support for this interpretation of our statute will be found in Bissell v. Beckwith, 32 Conn. 509, 516; McClure v. Middletown Trust Co., 95 Conn. 148, 159, 110 A. 838; Baxter v. Camp, 71 Conn. 245, 252, 41 A. 803, 42 L.R.A. 514, 71 Am.St.Rep. 169; Staples Ex'r et al. v. Lewis et al., 71 Conn. 288, 290, 41 A. 815; Doolan v. Heiser et al., 89 Conn. 321, 94 A. 354.

It is true that we said in Baxter v. Camp, supra, that ...