Dennen v. Searle

• Decision Date: 19 December 1961
• Citation: 149 Conn. 126,176 A.2d 561
• Court: Connecticut Supreme Court
• Parties: Rena L. DENNEN et al. v. Mildred B. SEARLE. Supreme Court of Errors of Connecticut

Page 561

176 A.2d 561

149 Conn. 126

Rena L. DENNEN et al. v. Mildred B. SEARLE.

Supreme Court of Errors of Connecticut.

Dec. 19, 1961.

Frank A. Francis, Hartford, for appellant (defendant).

H. David Leventhal, Hartford, for appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

KING, Associate Justice.

On September 18, 1941, Mary A. Searle conveyed a tract of land in Windsor to her four children as tenants in common. These children comprised the three plaintiffs in this action, Rena L. (Searle) Dennen, Ralph B. Searle and Inez C. Searle, and also Elbert A. Searle, the deceased husband of Mildred Beebe Searle, the defendant in this action. Although Mary A. Searle reserved a life estate in herself, this need not be considered, since she apparently died prior to the execution of the instrument here in controversy.

On June 21, 1948, all four children joined in the execution of an unartfully drawn instrument which is styled 'Agreement' and which purports to change the the rights and interests of the cotenants inter se and to convey to others certain remainder interests in the land. ¹ This instrument remained unrecorded until May 19, 1953. The defendant's husband died intestate on May 10, 1953, leaving, as those entitled to his estate, the defendant and her two children, Milton C. and Enid L. Searle. See General Statutes, §§ 46-12, 45-274. The defendant knew nothing of the agreement until after her husband's death. The plaintiffs are in possession of the property and claim that their rights in it are those purportedly given them under the agreement. The defendant and her two children, at some undisclosed time after her husband's death but prior to February 19, 1955, executed a mutual distribution of the estate of her husband wherein all of his interest in the tract in question was set to her. No claim is made that this mutual distribution was executed prior to the effective date of the validating act hereinafter discussed.

The plaintiffs brought this action to quiet title under General Statutes, § 47-31. They alleged possession in themselves and such other rights and interests in the property as were purportedly given them by the agreement, and also that the defendant claimed rights in the property adverse to them. They asked for a judgment determining her rights in the property and settling the title thereto. Since none of the remaindermen other than the defendant were made parties, their rights cannot be authoritatively determined, and we confine our consideration to the rights of the plaintiffs and the defendant in the property. The remaindermen should have been made parties, and we decide this case only because, as hereinafter appears, our construction of the agreement and our determination of the claims of law made in respect to it deprive the remaindermen of nothing. See cases such as Auchincloss v. City Bank Farmers Trust Co., 136 Conn. 266, 273, 70 A.2d 105.

The plaintiffs claim their interests in the property solely under and by virtue of the agreement, which they claim is a valid deed. The defendant asserts that the agreement is inoperative as a deed for a number of reasons. We first consider the claim that it is ineffective because it lacks a granting clause.

Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it 'shall, if possible, be so construed as to effectuate the intent of the parties. * * * In arriving at the intent expressed * * * in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.' Bartholomew v. Muzzy, 61 Conn. 387, 393, 23 A. 604, 606; Luce v. Niantic Menhaden Oil & Guano Co., 86 Conn. 147, 149, 84 A. 521; B. T. Harris Corporation v. Bulova, 135 Conn. 356, 360, 64 A.2d 542. But 'it is not enough that the parties had * * * [a particular] intention in fact [that is, as a unanimous state of mind], unless they have expressed it in some way in * * * [the] deed. The question is not what did the parties actually mean to say, but, what is the meaning of what they have said.' Bartholomew v. Muzzy supra, 392; Lampson Lumber Co. v. Caporale, 140 Conn. 679, 682, 102 A.2d 875.

The granting clause does lack the customary operative words of conveyance such as 'grant,' 'convey,' 'bargain' or 'sell.' In their place, it employs the words, 'Said premises are to be held * * *,' and, in granting the remainder interests, the words 'to go,' 'to be his,' and 'shall go.' To be effective to transfer an interest in realty, a deed necessarily must contain words of present grant. 16 Am.Jur. 469, § 49. But no particular verbal formula is required under our rule of construction as previously given. The quoted words express an intention to create among the original cotenants new incidents of survivorship and power of sale, and to grant remainder interests to other persons subject to defeasance upon the exercise of the power of sale. The instrument was not ineffective as a deed for lack of a sufficient granting clause. See cases such as Shadden v. Zimmerlee, 401 Ill. 118, 121, 81 N.E.2d 477; Scott v. Brown, 71 Colo. 275, 277, 206 P. 572; Horton v. Murden, 117 Ga. 72, 75, 43 S.E. 786; Folk v. Varn, 9 Rich. Eq. 303, 310 (S.C.).

The defendant further claims that the use of the word 'or' in the phrase 'in the survivors or survivor [of the original cotenants],' purporting to create a right of survivorship, was inadequate to accomplish that purpose and left the provision unintelligible. A cotenancy, without more, under our case law is a tenancy in common without right of survivorship. Allen v. Almy, 87 Conn. 517, 525, 89 A. 205. The parties to the instrument were, at the time of its execution, outright owners of the property as tenants in common. The expressed intent was to annex to the existing tenancy in common a right of survivorship, and this can be done, if the intent to do so is clearly expressed, even though under our law survivorship is not a necessary incident of either a joint tenancy or a tenancy in common. New Haven Trolley & Bus Employees Credit Union v. Hill, 145 Conn. 332, 334, 142 A.2d 730; Hughes v. Fairfield Lumber & Supply Co., 143 Conn. 427, 430, 123 A.2d 195. Since there were more than two tenants in common, there would initially be more than one survivor, but ultimately there would be only a single survivor. This accounts for the language 'survivors or survivor.' The use of the disjunctive 'or' creates no uncertainty. The intent is obvious, and the defendant's claim is without merit. ²

The defendant also claims that even if the instrument is a deed, it is inoperative for lack of any seal. Since there is no seal, the instrument fails to conform to the requirements as to the due execution of a conveyance of realty as set forth in General Statutes, § 47-5, and on its face is inoperative as a deed. See Savings Bank of New Haven v. Davis, 8 Conn. 191, 212; Howe v. Keeler, 27 Conn. 538, 555; Bickart v. Sanditz, 105 Conn. 766, 772, 136 A. 580. The plaintiffs claim that this defect was cured by subsequent validating acts. At the legislative sessions of 1949, 1951 and 1953, acts were enacted, in substantially identical language, validating properly recorded conveyances which were defective because of the absence of a seal. ³ None purported to validate a conveyance unless the conveyance had been recorded nor in fact did it. Mangusi v. Vigiliotti, 104 Conn. 291, 295, 132 A. 464. The agreement was recorded May 19, 1953, so that it was validated, if validation was possible, by the 1953 validating act, which, as a special act, took effect upon its approval by the governor on June 30, 1953. General Statutes, § 2-32. The defendant claims that the validating act could not affect her, since its operative date was subsequent to that of her husband's death and at the moment of his death his interest vested in those entitled to his intestate estate, that is, the defendant and his heirs at law, the two children. See General Statutes, §§ 46-12, 45-274; Parlato v. McCarthy, 136 Conn. 126, 133, 69 A.2d 648; O'Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336, 148 A.L.R. 169; Ziulkowski v. Kolodziej, 119 Conn. 230, 233, 175 A. 780, 96 A.L.R. 1065; 2 Locke & Kohn, Conn. Probate Practice § 266.

'What the Legislature may prescribe it may dispense with, and it may cure by subsequent act an irregularity of nonobservance of requirements which it originally might have dispensed with, provided that vested rights have not intervened.' Sanger v. City of Bridgeport, 124 Conn. 183, 186, 198 A. 746, 748, 116 A.L.R. 1031. Since the requirement of a seal was prescribed by statute, there can be no question of the right of the General Assembly to cure the defect arising from the omission of a seal, as between the parties to the instrument. Ibid. Thus, if the agreement had been recorded, and its validation had occurred, before the death of Elbert A. Searle, the deed would have been effectually validated. He could have had no equitable justification for objecting to the validation. The question arises as to what equities this defendant has which her husband lacked. At the moment of his death, a one-third interest in his interest in the property vested in her. She paid nothing for it. She did nothing in reliance on the state of the record title. She was not a creditor of her husband's estate. Her position is not that of a bona fide purchaser for value, or even of a purchaser for value with notice. She has no equities other than those he had. See cases such as Finnegan v. LaFontaine, 122 Conn. 561, 568, 191 A. 337; Sanford v. DeForest 85 Conn. 694, 698, 84 A. 111; Green v. Abraham, 43 Ark. 420, 425. In short, she could not by the mere act of inheritance gain interests, legal or equitable, in the property greater than...