Fitch v. State

• Decision Date: 03 February 1953
• Citation: 139 Conn. 456,95 A.2d 255
• Parties: FITCH et al. v. STATE. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 255

95 A.2d 255

139 Conn. 456

FITCH et al. v. STATE.

Supreme Court of Errors of Connecticut.

Feb. 3, 1953.

Frank J. DiSesa, for the appellants and plaintiffs.

William L. Beers, Deputy Atty. Gen. (George C. Conway, Atty. Gen., and Louis Weinstein, Asst. Atty. Gen., on the brief), for the appellee and defendant.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

In this action claiming that a deed to the defendant be declared null and void and seeking other relief, we found error upon a previous appeal from a judgment for the plaintiffs, and we set the judgment aside and remanded the case with direction to correct the referee's report in accordance with our opinion 'and to proceed thereafter in accordance with law.' The plaintiffs then filed in the Superior Court a motion for permission to amend their complaint, and the defendant made a motion for judgment. The court denied the motion to amend and entered judgment for the defendant. The plaintiffs have appealed, assigning error in both of these rulings.

The material facts established by the referee's report as corrected may be thus summarized: In 1864 Benjamin Fitch conveyed a piece of real property to a soldiers' home corporation, with a provision for reverter if the premises should be diverted from the corporate purposes. In 1883 he died. In 1884 Francis S. Fitch acquired title to the reversionary interest by virtue of a deed to him from all of the other heirs and next of kin of Benjamin Fitch. In 1917 the governor's secretary wrote Francis S. Fitch that the federal authorities had informed the state that unless title to the entire property was placed in the state no more federal aid for the home would be forthcoming, and requested that he execute a release of the reversionary interest either to the home or to the state. As a result of this letter Francis S. Fitch thereupon quitclaimed his reversionary interest to the state. In 1927 the corporation conveyed the premises to the state. The use of the property as a soldiers' home was discontinued in 1940.

The plaintiffs originally brought their action on the theory that the deed given by Francis S. Fitch purporting to convey to the defendant his reversionary interest in the land was executed under a mistake of fact consequent upon the letter from the governor's secretary and that the condition upon which the reverter depended had occurred. By their prayers for relief they sought to have the court declare the deed from Francis S. Fitch void and decree that title had reverted to them as his residuary devisees. Upon the basis of the referee's report, finding that the deed from Francis S. Fitch had been given by mistake, the court found the issues for the plaintiffs and adjudged that they were entitled to the $50,000 fund which had been substituted for the real estate in question. It was upon the defendant's appeal from this judgment that, as stated above, we found error and ordered that, after correction of the referee's report, as directed, the case should proceed in accordance with law. By the amendment of the complaint proposed under their motion, the plaintiffs abandoned their claim of mistake by striking out the paragraph which alleged it and changed the cause of action to one for recovery by them as heirs and next of kin of the original donor, Benjamin Fitch, upon the theory of failure of the charitable trust established by his deed in 1864

While the plaintiffs do not question that recovery upon the ground of mistake is precluded by our previous decision, they claim that since this court, instead of directing judgment for the defendant, remanded the case to be proceeded with in accordance with law, it was thereby restored to the docket as a case still pending in the trial court. By reason of this they contend that the court should have granted their motion to amend the complaint. It is apparent, however, that though the case was still on the docket of the trial court it differed from the ordinary untried action, because the referee's finding as corrected constituted an essential part of the record in the case. While the plaintiffs on the previous appeal failed to establish any basis entitling them to relief, our purpose in remanding the case for further proceedings instead of directing judgment was to give them one further opportunity, if they could do so, to present an amendment of their complaint alleging a valid cause of action. As a general rule, a case cannot be presented by halves. Lamenza v. Shelton, 96 Conn. 403, 413, 114 A. 96. Our course, however, was in accord with that which may be adopted by the court in ruling upon a motion for judgment non obstante veredicto. See Gesualdi v. Connecticut Co., 131 Conn. 622, 631, 41 A.2d 771. The most that the plaintiffs were entitled to under the remand was to have their proposed amended complaint tested in connection with the facts established by the report of the referee as corrected. 'The reversal of a judgment annuls it, but does not necessarily set aside the foundation on which it rests. This foundation may be sufficient to support a judgment of a different kind, and may be such as to require it. A reversal, therefore, is never standing alone, and ex vi termini, the grant of a new trial. If the error was one in drawing a...