Carney v. Hennessey

• Decision Date: 23 July 1901
• Citation: 74 Conn. 107,49 A. 910
• Parties: CARNEY v. HENNESSEY et ux.
• Court: Connecticut Supreme Court

49 A. 910

74 Conn. 107

CARNEY

v. HENNESSEY et ux.

Supreme Court of Errors of Connecticut.

July 23, 1901.

Appeal from court of common pleas, New Haven county; Leverett M. Hubbard, Judge.

Action by Margaret Carney against James Hennessey and wife. From a judgment for plaintiff, defendants appeal, and plaintiff also files exceptions. Reversed.

Action in the nature of trespass qu. cl. fi., brought to the court of common pleas in New Haven county, and tried to the jury before Hubbard, J. Verdict and judgment for the plaintiff for one dollar damages, and appeal by the defendants for alleged errors in the rulings and charge of the court. The plaintiff filed a bill of exceptions for alleged errors of the court in excluding certain evidence, and in limiting the plaintiff's costs to one dollar.

George E. Beers and Frank S. Bishop, for appellants. Charles S. Hamilton, for appellee.

TORRANCE, J. The plaintiff and defendants are adjoining proprietors of land in New Haven fronting westerly on State street, and running east to Olive street. The plaintiff owns the north lot, and the defendants the south lot. The dispute between them relates to the question whether the boundary line between said lots runs along the outside face of the southerly wall of the brick building on plaintiff's land, as claimed by the defendants, or whether it runs about a foot and a half, more or less, southerly of said face of said wall, as claimed by the plaintiff. Both lots were owned as one by Joseph Fairchild in 1874, and in October of that year he conveyed the north lot to his daughter Mrs. Easton. She died in 1876, and the lot came then by descent to her two minor daughters, Josephine and Mary. Josephine came of age in 1888, and Mary' in 1889 or 1890; and after this, in November, 1890, they conveyed the lot to Gallagher, who immediately conveyed it to Forsyth, who in 1892 conveyed it to the plaintiff. Joseph Fairchild died testate in 1881, leaving other land of his on State street, which included the south lot, now owned by the defendants, in equal shares to his live sons; and said south lot by mesne conveyances finally came Into the ownership and possession of the defendants in March, 1891. Both parties claimed to own the locus in quo under their respective chains of deeds produced in evidence; and in addition to this the defendants claimed (1) that they owned it by adverse possession; and (2) that, when the deeds of the daughters of Mrs. Easton and of Gallagher and Forsyth were delivered as hereinbefore stated, the grantors in those deeds were ousted of possession of the locus in quo. These claims of each party were denied by the other. The evidence produced by each party in the court below tended to prove their respective claims. The reasons of appeal are based mainly upon alleged errors of the court in its rulings upon evidence, and in its instructions to the jury with reference to the claims of the defendants. These reasons are quite numerous, but, in the view here taken of the case, it will be necessary to consider only a few of the more important of them.

The defendants claimed that at some time before 1881, and after the conveyance of the north lot to Mrs. Easton, a fence was built from the southeast corner of her house to Olive street; that said fence had remained there up to the time this suit was brought; and that the defendants and their predecessors in title, from the time said house and said fence were built, and for more than 15 years before the bringing of this suit, had been in the exclusive and adverse possession of all the land south of said brick house and said fence. In support of this claim the defendants offered Mrs. Hayes as a witness. She, having testified that she lived in the house now owned by the plaintiff from 1877 to 1881, and that when she went there first the. fence aforesaid was then standing, was asked this question: "During the life of Mr. Joseph Fairchild, will you state who, if any one, made use of the land south of the fence?" The evidence sought for by this question was claimed as tending to prove (1) adverse possession of the defendants as claimed; (2) the fact that plaintiff's grantor was ousted of possession at the time the deed to the plaintiff was delivered; and (3) the practical construction put by the parties upon the deeds, the descriptions in which, as to the exact location of the boundary line in question, the defendants claimed, upon the evidence, were uncertain and ambiguous. This question was objected to and excluded on the ground "that it calls for a conclusion of the witness as to what somebody else did, and does not call for any act that she did." This objection should have been overruled. Assuming, as we should upon this record, that the answer would have been responsive to the question, we think the evidence was clearly admissible for all the purposes for which it was offered, and that its exclusion under the circumstances was harmful error.

The defendants offered evidence, and claimed to have proved, that the plaintiff, since her purchase of the north lot, had resided thereon only a part of the time, and that the care of the place had been intrusted by her to her brother, who was authorized to, and did, act as her agent in caring for it, paying taxes and assessments thereon, and having general charge of it as her general agent. In view of this evidence and claim, the defendants offered evidence of certain acts and admissions claimed by them to have been made by this agent during and within the scope of his agency. The court excluded the evidence. The ground of exclusion, so...